Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 473783
Margulies, J.
Defendant Jess Robert Whitehead was convicted of several charges growing out of two separate criminal incidents. Following trial, the court found true enhancement allegations that defendant had committed a prior serious felony and had served prior prison terms, but the court concluded that the prosecution had failed to prove an enhancement allegation that defendant committed one of the offenses while released on bail. The court imposed sentence on the various charges, but it stayed imposition of the enhancements.
The District Attorney of Sonoma County appeals defendant’s sentence, contending that the trial court erred in staying imposition of the sentence enhancements and in finding that the prosecution failed to prove the on-bail enhancement. We agree that the trial court erred in staying the enhancements, vacate portions of the judgment, and remand with directions.
I. BACKGROUND
Defendant was the subject of two criminal informations, filed on December 8 and 22, 2005. The December 22 information, filed as case No. SCR 473940 (hereafter the auto theft information), alleged that on October 5, 2005, defendant committed the following offenses: auto theft (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), possession of burglary tools (§ 466), and driving without a license (Veh. Code, § 12500, subd. (a)). The auto theft information also alleged a prior strike conviction for a September 1997 robbery (§ 1170.12) and a prior prison term enhancement for the same robbery conviction and a January 1997 conviction for possession of illegal explosives (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Although defendant suffered two convictions, they were alleged as a single prior prison term enhancement.
The second information, filed as case No. SCR 473783 (hereafter the burglary information), alleged that on October 8, 2005, defendant and another man committed residential burglary (§ 459) and auto theft (Veh. Code, § 10851, subd. (a)), and defendant was charged with four counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). For each count, it was alleged as an enhancement that the offense was committed at a time when defendant was released on bail for “Case Number DAR515438,” an apparent reference to the auto theft information. (§ 12022.1.) In addition to alleging the same prior strike and prior prison term enhancements as the auto theft information, the burglary information alleged a prior serious felony conviction for the 1997 robbery. (§ 667, subd. (a)(1).)
The burglary information was tried first. On April 11, 2006, a jury found defendant guilty of auto theft and one count of felon in possession of a firearm, not guilty of one count of felon in possession of a firearm, and reached no verdicts on the remaining counts.
Because it is unnecessary to consider the facts of defendant’s various offenses in order to resolve his contentions on appeal, we do not discuss them.
On May 5, 2006, following the grant of a motion to consolidate the charges, an amended information was filed containing the unresolved charges from the burglary information and the charges from the auto theft information, which had yet to be tried. On May 10, 2007, defendant was convicted of all charges in that amended information.
The enhancement allegations were tried to the court on May 14, 2007. As proof of the various enhancements, the prosecution submitted a single exhibit, identified as exhibit 1. While exhibit 1 contained documentary proof of defendant’s prior convictions, it did not contain any information about defendant’s bail status at the time of the second offense. Based on exhibit 1, the court found that defendant’s prior strike conviction, prior prison convictions, and prior serious felony conviction were true. It then turned to the on-bail enhancement, asking the prosecutor whether he had any “further argument or evidence” regarding that enhancement.
The following colloquy ensued:
“[Prosecutor]: No the People do not have any further evidence regarding that allegation, other than asking the Court to take judicial notice of the defendant’s custody status at the time of these charges. It’s my understanding that that other case, the basis for that is the trailing matter, is that correct?
“THE COURT: The only reference in the information is to a DAR number 515438.
“[Prosecutor]: And that is a different number than the case I have just referred to your Honor. I’m not sure which case that DAR number matches up with. The People would move to amend that DAR number to comport with the current trailing case which is in fact DAR 510042. And that the allegations in that file are that on July 9th of 2005, the defendant committed the crime of 11377(a) and I believe he was—that charge was pending, he was out on bail or on OR at the time of the commission of these crimes which is October 8th or 9th of 2005.
The prosecutor was presumably referring to a violation of Health and Safety Code section 11377, subdivision (a), which prohibits the possession of a controlled substance. Plainly, the prosecutor was mistaken about the identity of the proceeding to which the on-bail allegation referred. Other than this mention, there is no evidence in the appellate record of any drug charge against defendant.
“[Defense Counsel]: Your Honor, just for the record [I] would object. The People have had plenty of time to amend the complaint and the information with respect to that and there is no evidence with regard to the DAR number 515438 that’s alleged in the information.”
Based on this submission, the trial court found the prosecution failed to prove the on-bail enhancement and denied the motion to amend.
Notwithstanding this failure of proof, there is no dispute that defendant was, in fact, released on bail from his arrest in connection with the auto theft information when he committed the crimes alleged in the burglary information.
At sentencing, the trial court began its comments by denying defendant’s motion to strike the prior strike enhancement allegation. As the court explained, “I do not believe that somehow in any way, shape or form this case falls outside of the scope of the three strikes law and its intended spirit as the Court decisions describe. [¶] This was a second strike definitively committed by [defendant]. There’s no question in this Court’s mind about it and about the Jury’s verdict based on what was presented, and there’s just no basis upon which a Romero motion would be appropriate here....” Defendant was sentenced to the midterm of four years for the residential burglary, doubled to eight years pursuant to the “Three Strikes” law, plus a consecutive term of eight months (one-third of the midterm) for being a felon in possession of a firearm. In addition, the court imposed four-year terms for the remaining firearm possession and auto theft convictions to run concurrently, for a total sentence of eight years eight months.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The court stayed the prior serious felony and prior prison term enhancements, concluding that “based on the time between the offenses, albeit a serious one, [and] the age of [defendant] at the time,... in the interest of justice staying the [terms] pending successful completion of prison and parole is warranted....” The prosecution asked the court to impose a consecutive two-year term in connection with the on-bail enhancement, arguing that the court’s conclusion that the allegation was not proven had resulted from confusion about case numbers. The court rejected the argument and “dismiss[ed] any further proceeding” with respect to that enhancement “in the interest of justice and on its own motion.”
II. DISCUSSION
The district attorney appeals the trial court’s sentence, contending that the court erred in staying the imposition of sentence with respect to the proven enhancements and in finding the on-bail enhancement not proven.
The prosecution is permitted to appeal the imposition of an “unlawful” sentence under section 1238, subdivision (a)(10).
A. Stay of the Proven Enhancements
The district attorney is clearly correct that the trial court erred in staying the proven sentence enhancement terms. The general principle is that “a court has no authority to stay an enhancement under its ‘discretionary sense of justice’—it must either impose it or strike it in furtherance of justice under section 1385.” (People v. McQueen (2008) 160 Cal.App.4th 27, 37; see similarly People v. Lopez (2004) 119 Cal.App.4th 355, 364; People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Accordingly, it has been held error to stay the imposition of both enhancements alleged here, a serious felony enhancement under section 667, subdivision (a)(1) (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122) and a prior prison term enhancement under section 667.5. (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Although a trial court has no discretion to stay a sentence enhancement, it ordinarily has the discretion to strike one. “It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice.’... ‘[A]bsent a clear legislative direction to the contrary, a trial court retains its authority under section 1385 to strike an enhancement.’ ” (People v. Meloney (2003) 30 Cal.4th 1145, 1155, fn. omitted.)
Section 1385, however, contains an express prohibition on the striking of a serious felony enhancement under section 667, subdivision (a). Despite the wide discretion granted by section 1385, subdivision (a), subdivision (b) states, “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” (See, e.g., People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) As explained in Romero, supra, 13 Cal.4th 497 , section 1385, subdivision (b), was intended to make imposition of the five-year enhancement mandatory: “[I]n People v. Fritz [(1985)] 40 Cal.3d 227,... the court held that a trial judge could strike in furtherance of justice, under section 1385, prior serious felony conviction allegations made under section 667, subdivision (a), which mandates a five-year enhancement for each such conviction. The Legislature responded by adding section 1385[, subdivision] (b), which expressly withdrew the court’s power to strike such allegations.” (Romero, at p. 521.) Accordingly, the trial court was subsequently required to impose the five-year enhancement under section 667, subdivision (a). (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1560–1561 [“A five-year section 667, subdivision (a) prior serious felony conviction enhancement may not be stricken pursuant to section 1385, subdivision (a) or any other provision of law”].)
Because there is no such statutory exemption from the ordinary rule for a prior prison term enhancement under section 667.5, the trial court has discretion either to strike or impose that enhancement. (E.g., People v. Langston, supra, 33 Cal.4th at p. 1241 [prison term enhancement may not be stayed and must be imposed unless stricken].)
The district attorney argues, without citation to authority, that the trial court was required to impose the section 667.5 enhancement because it found no basis under Romero to strike the prior strike enhancement. Under Romero, a trial court may strike a prior strike allegation if, upon consideration of the nature and circumstances of prior felonies and the background and character of the defendant, the court concludes that the defendant “may be deemed outside the [Three Strikes] scheme’s spirit.” (People v. Williams (1998) 17 Cal.4th 148, 161.) There is no reason to conclude, however, that the interests of justice analysis is identical for the two types of enhancements, which differ in justification, length and effect. On the contrary, the discretionary analysis has generally been treated as independent for the two enhancements. (See, e.g., People v. Buckhalter (2001) 26 Cal.4th 20, 24.) Accordingly, we conclude that the trial court may either impose or strike the section 667.5 enhancement, despite its conclusion that Romero is inapplicable, but it may not stay it.
Defendant argues that the prior prison term enhancement is “moot” if the five-year enhancement under section 667 is imposed, since a court may impose only one enhancement in connection with a particular prior conviction. (E.g., People v. Jones (1993) 5 Cal.4th 1142, 1150 (Jones).) The prior prison term enhancement was based on two prior convictions, however—the 1997 explosives possession conviction as well as the 1997 robbery. The trial court found both convictions to be true. Because imposition of the prior prison term enhancement on the basis of the explosives possession conviction would not be precluded by Jones, the trial court was required either to impose or strike it.
Defendant also argues that the trial court intended to strike the prior prison term enhancement but used the wrong words. There is, of course, a well-recognized distinction between staying and striking an enhancement, and we find no evidence that the trial court was confused as to that distinction.
B. Waiver
Defendant contends that the prosecution waived its right to raise the trial court’s stay of the enhancements by failing to object at the time of sentencing. The governing rule is that “unauthorized sentences” can be appealed despite a failure to object, while “discretionary sentencing” decisions must be challenged first in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) The distinction was explained in People v. Stowell (2003) 31 Cal.4th 1107: “In Scott, the court distinguished between unauthorized sentences—those that ‘could not lawfully be imposed under any circumstances in the particular case’ (citation)—and discretionary sentencing choices—those ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.’ [Citation.] As to the former, lack of objection does not foreclose review: ‘We deemed appellate intervention appropriate in these cases because the errors presented “pure questions of law” [citation] and were “ ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.’ [Citation.] With respect to the latter, however, the general forfeiture doctrine applies and failure to timely object forfeits review. Such ‘[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.’ ” (Id. at p. 1113.) The rule is equally applicable to appeals by a defendant or the prosecution. (People v. Tillman (2000) 22 Cal.4th 300, 303.)
Applying this rule, we conclude that the prosecution was not required to object in the trial court because the court’s stay of the prior serious felony and prior prison term enhancements was unauthorized—that is, the stays “could not lawfully be imposed under any circumstance in the particular case.” (Scott, supra, 9 Cal.4th at p. 354.) As noted, having found the enhancement allegations true, the court had no discretion to stay them. Because this is a question of law that does not depend on a judgment about the trial court’s exercise of discretion, it is appealable without regard to whether objection was made below. (See People v. Garcia, supra, 167 Cal.App.4th at p. 1562 [“The failure to impose a five-year section 667, subdivision (a) prior serious felony conviction enhancement is a jurisdictional error which may be corrected for the first time on appeal. [Citations.] In a similar vein, the failure to either impose or strike a section 667.5 prior prison term enhancement pursuant to section 1385, subdivision (a) is a jurisdictional error which may be corrected for the first time on appeal”].)
The waiver argument does not apply to the on-bail enhancement, since the prosecution did object to the trial court’s treatment of that enhancement.
Defendant argues that the total sentence imposed, eight years eight months, was not unauthorized because it “was within the range of the sentencing court’s discretion in the instant case. The sentencing court could have imposed anything from zero to twenty years.... Because the sentence was not inherently defective, it follows that it was not ‘unauthorized.’ ” The argument ignores the important qualification that an unauthorized sentence is one that cannot be imposed “under any circumstance in the particular case.” It is certainly true, as defendant argues, that criminal proceedings have the potential to result in a range of possible sentences. The trial court, however, does not have unfettered discretion to select within that range; rather, the court must follow a number of rules to arrive at a legally permissible sentence for the particular defendant. In this case, for example, and contrary to defendant’s claim, a sentence of zero years was not permissible because defendant was not eligible for probation; some prison term was required. Further, because defendant had a sustained prior strike conviction, that base term had to be doubled. An “unauthorized sentence” is one imposed in violation of one or more of the nondiscretionary rules, as they apply to the circumstances of the particular defendant. As noted, such a violation occurred here.
C. On-bail Enhancement
Defendant contends that the trial court’s refusal to impose the on-bail enhancement was not appealable because the decision, based on a factual finding by the court, did not constitute an “unlawful” sentence for purposes of the statute governing appeals by the prosecution. (§ 1238.) We are inclined to agree. The trial court concluded that the prosecution had failed to prove the on-bail enhancement and declined to take judicial notice of the defendant’s status at the time of the second crime. Such rulings do not appear to fit the definition in section 1238, subdivision (a)(10), of an “unlawful sentence”: “[T]he imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”
We do not resolve this issue, however, because we find no error in the trial court’s decision finding the on-bail enhancement unproven. At trial of the sentence enhancements, the prosecutor presented no documentary proof that defendant was released on bail at the time of the second offense. When asked to explain the case number reference in the burglary information, the prosecutor referred not to the auto theft information but to an entirely different proceeding, of which there is no evidence in the record.
Accordingly, there was no proof presented at the enhancement trial of defendant’s bail status at the time of the second offense. Although the prosecutor asked the trial court to take “judicial notice” of the defendant’s bail status, there is no indication the prosecutor offered a written record documenting defendant’s bail status on that matter. There was therefore nothing raised by the prosecutor of which the court could take judicial notice. In addition, the prosecutor was unable even to identify the proceeding that was the basis for the on-bail allegation. The prosecutor’s oral request for amendment, if granted, would have referred not to the auto theft information but to a proceeding of which there is no other evidence in the record. The trial court did not err in concluding that the prosecution had failed to prove that defendant was released on bail at the time of the burglary. Because the court found that the allegation was not proven at trial, there was no error in its subsequent refusal to impose an enhancement at the time of sentencing.
The district attorney argues, in effect, that the record shows clearly that an on-bail enhancement is justified because defendant was, in fact, released on bail for the first offense when he committed the second offense. The argument ignores the prosecution’s failure of proof at trial. There was a time and place for the prosecution to prove the on-bail enhancement. It failed to do so. The district attorney cannot cure that failure merely by placing before us the materials that should have been presented then.
D. Breadth of Remand
Defendant argues that we should remand without instructions because “[o]n remand the sentencing court is generally free to reconsider the entire sentencing scheme... and all sentencing choices.” The argument that we are required to vacate the sentence entirely if we find any error and remand for resentencing is not supported by the case law. Defendant cites only to People v. Savala (1983) 147 Cal.App.3d 63 (Savala) (overruled on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044, 1046–1047), which does not stand for that proposition. In an earlier decision, the Savala court had concluded that the trial court erred in imposing a particular enhancement and “remanded to the trial court with directions to set aside the sentence and to resentence defendant in accordance with [prevailing authority].” (People v. Savala (1981) 116 Cal.App.3d 41, 62.) Upon remand, the trial court refrained from imposing the enhancement, but it increased the defendant’s base sentence from the middle to the upper term. In the second decision, cited by defendant, the court affirmed the trial court’s discretion to make that change. Regarding the trial court’s decision, the court commented, “Had we concluded that the only possible remedy was to strike the invalid portion of the sentence we would have simply modified the judgment and affirmed as modified. In remanding the cause we left open to the trial court’s discretion the decision whether the invalid portion of the sentence infected other portions. We thus find no impediment to the resentencing in our previous decision.” (Savala, supra, 147 Cal.App.3d at p. 66.) In other words, Savala held only that, given the particular language in the first appellate decision, the trial court had the discretion to reconsider the entire sentence. It pronounced no general rule regarding resentencing. On the contrary, the decision expressly recognized the power of the appellate court to limit the trial court’s sentencing discretion on remand.
In reviewing the case law, we have found no support for the general rule defendant advocates. Under section 1260, an appellate court has broad discretion to affirm, reverse, or modify a judgment and remand “for such further proceedings as may be just under the circumstances.” Making use of that discretion, courts generally remand with directions when they have found error in a sentencing decision. Sometimes those directions merely call for resentencing. In other cases, the appellate court’s directions are more specific, directing the trial court only to take specific actions with respect to the sentence. (E.g., People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388 [appellate court strikes enhancement rather than remand]; People v. Jordan (2003) 108 Cal.App.4th 349, 368 [trial court on remand restricted to decision whether to strike prior prison sentence enhancement].) We conclude that our remand need not authorize the trial court to reconsider sentencing altogether but may limit the court’s discretion to the correction of errors actually identified on appeal.
Defendant also contends that, even if we do not remand for complete resentencing, the trial court should be permitted to reconsider its decision not to strike the prior strike conviction allegation. Defendant relies on People v. Wallace (2004) 33 Cal.4th 738 (Wallace) and People v. Garcia (1999) 20 Cal.4th 490 (Garcia). In Wallace, the Supreme Court reversed a trial court decision to strike a prior strike enhancement upon the finding that, although the defendant had pleaded to the charge, a preliminary hearing magistrate had earlier found insufficient evidence to support it. After concluding that this was not a relevant consideration under Romero (Wallace, at p. 748), the court remanded for resentencing. The court noted that, on remand, “[d]efendant is free to contend... that other factors take him outside the spirit of the Three Strikes scheme and warrant striking the prior-conviction allegations pursuant to section 1385.” (Id. at p. 753.) In Garcia, the defendant was convicted of charges associated with two burglaries. In sentencing the defendant on the charges associated with one of the burglaries, the trial court refused to strike the defendant’s prior strike convictions and imposed a 30-year-to-life sentence; with respect to the other burglary, the court struck all prior conviction allegations and imposed a consecutive 16-month sentence. (Id., at p. 495.) In commenting on the propriety of this approach, the court noted that, with respect to the Romero considerations, “[e]ven if the current offenses are virtually identical, a defendant’s ‘prospects’ [citation] will differ greatly from one count to another because a Three Strikes sentence on one count will itself radically alter those prospects. Here, for example, once the trial court had sentenced defendant to a term of 30 years to life for the [first] burglary, his ‘prospects’ for committing future burglaries diminished significantly.” (Garcia, at p. 500.) Based on Wallace and Garcia, defendant argues that we should remand for resentencing because the trial court might conclude that it should strike the prior strike allegation if it must impose the five-year serious felony enhancement.
The distinctions from both cases, however, are obvious. Unlike Wallace, there was no contention here that the trial court erred in its decision not to strike defendant’s prior strike allegation. We therefore have no reason to vacate the trial court’s conclusion that there is no basis under Romero to strike the prior strike allegation; the mere possibility that the trial court might reach a different conclusion on remand does not justify vacating a finding that has not been shown to be erroneous. In Garcia there was no error and no resentencing. The court merely speculated on the basis for the trial court’s decision to impose very different sentences on two similar charges and affirmed that reasoning. The decision provides no basis for a wholesale resentencing in this case.
Accordingly, we find no basis for reopening the Romero issue. The trial court was unequivocal in concluding that “there’s just no basis upon which a Romero motion would be appropriate here.” The mandatory imposition of an additional five-year enhancement would not change that calculation. Unlike the defendant in Garcia, defendant was not already suffering an indeterminate sentence based on the Three Strikes laws. If the trial court were to strike the prior strike allegation for the sole purpose of mitigating the additional sentence required as a result of the serious felony enhancement, the modification would constitute a nullification of the statutory sentencing requirements, an impermissible justification under Romero. (Romero, supra, 13 Cal.4th at p. 531.)
III. DISPOSITION
The portion of the trial court’s judgment staying the prior serious felony enhancement and the prior prison term enhancement is vacated. The matter is remanded to the trial court with directions to impose the five-year prior serious felony enhancement and to determine, in the proper exercise of its discretion, whether to strike or impose the prior prison term enhancement. The judgment of the trial court is otherwise affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.