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People v. Garcia

June 1, 1999

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY GARCIA, DEFENDANT AND APPELLANT



The opinion of the court was delivered by: Chin, J.

As Modified on Denial of Rehearing July 21, 1999; As Modified Aug. 11, 1999

In this case, we consider whether a trial court, when applying the "Three Strikes" law (Pen.Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) *fn1 may exercise its discretion under section 1385, subdivision (a), so as to dismiss a prior conviction allegation with respect to one count but not another. We conclude that a court may exercise its discretion in this way and that the trial court did not abuse its discretion in doing so here. Accordingly, we reverse the judgment of the Court of Appeal.

Factual and Procedural Background

On June 19, 1996, Barbara Gantt left her home suddenly to go to the hospital and inadvertently left a window open. She returned home less than two hours later and found the place ransacked. Various items were missing, including a translating machine, jewelry, and a videocassette recorder. As she was cleaning up, she found a wallet with defendant's driver's license on the floor among some of her papers.

On September 4, 1996, Grace Kobel returned home to find defendant bicycling out of her driveway. A window was broken, the screen was lying on the ground, and her front door was open. Kobel called the police, who arrived a few minutes later. She entered the house with the police and found various items missing, including a telephone, jewelry, and a toy airplane. About the same time, police officers spotted defendant riding a bicycle several blocks away and stopped him. Defendant was holding two plastic bags that contained many of the items missing from Kobel's home. He also had jewelry in his pockets.

Defendant admitted burglarizing the Gantt and Kobel homes. He described the burglaries in detail and pointed out their locations as police drove him around in a van. He also admitted a third burglary and pointed out its location.

The district attorney charged defendant with three counts of burglary (§ 459), but moved to dismiss the second count in exchange for defendant's waiving his right to a jury trial. The court granted the motion. The remaining counts related to the burglaries of the Gantt and Kobel homes. The court found defendant guilty on both counts. The court also found true an allegation that defendant had five prior serious felony convictions qualifying as "strikes" for purposes of the Three Strikes law. (See People v. Fuhrman (1997) 16 Cal.4th 930, 932, 67 Cal.Rptr.2d 1, 941 P.2d 1189, fn. 2 ["We use the term 'strike' to describe a prior felony conviction that qualifies a defendant for the increased punishment specified in the Three Strikes law."].) These convictions, all on July 17, 1991, were for five burglaries (§ 459) that took place on separate occasions during a short crime spree. The court also found that the same five burglary convictions qualified as one prior serious felony conviction for purposes of the five-year enhancement set forth in section 667, subdivision (a)(1). Finally, for purposes of the one-year enhancement set forth in section 667.5, subdivision (b), the court found true an allegation that defendant had served three prior prison terms. The first of these terms was for a January 10, 1985, conviction for receiving stolen property (§ 496), the second for a February 19, 1987, conviction for possession of heroin (Health & Saf.Code, § 11350, subd. (a)), and the third for the five 1991 burglary convictions already mentioned.

At the sentencing hearing, the court considered a probation report indicating defendant had a history of burglarizing homes and then trading stolen property for drugs. Barbara Gantt and Grace Kobel then described the impact defendant's crimes had on them and asked the court to give defendant the maximum sentence. Next, defendant's girlfriend described defendant's difficult life, saying he grew up in foster homes and was addicted to heroin by age 12. Finally, defendant expressed remorse about the burglaries and asked for forgiveness.

Defense counsel then asked the court to exercise its discretion under section 1385, subdivision (a) (see People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 ( Romero )), and dismiss, or "strike," four of the five prior conviction allegations as to both counts, thereby making the case a "second strike" case and reducing defendant's sentence to a term of twenty–two years and eight months. The court responded that "the interests of justice would not be served by striking four strikes in this case," and to do so "would be for the sole purpose of avoiding the sentence I'm required to hand down by law." The court noted that defendant committed five separate residential burglaries, went to state prison, and then, shortly after his release and while still on parole, committed two more residential burglaries. "[I]f the Three Strikes law was meant for anyone it was meant for Mr. Garcia," the court said. The court also concluded that the crimes "were not committed out of a need by Mr. Garcia to support a drug habit." However, the court granted defendant's request for a continuance to present further evidence connecting the crimes to drug addiction. At a subsequent hearing, defendant's aunt testified about defendant's difficult childhood and drug use at age 12 or 13. Then, in argument, defense counsel further stressed defendant's long history of drug abuse.

After hearing this additional evidence and argument, the court agreed that defendant's drug addiction was "a factor in mitigation." The court also noted that all defendant's prior serious felony convictions arose from a single period of aberrant behavior for which he served a single prison term. The court commented that defendant had cooperated with police both in 1991 and when they arrested him for the current offenses. Finally, the court stated that defendant had no record of violence.

As to the Kobel burglary, the court sentenced defendant to a term of 30 years to life in state prison. This sentence included 25 years to life under the Three Strikes law plus the mandatory (§ 1385, subd. (b)) 5–year enhancement under section 667, subdivision (a)(1). The court initially imposed three 1–year enhancements under section 667.5, subdivision (b), for the prior prison terms, but then exercised its discretion under section 1385, subdivision (a), and struck these enhancements. As to the Gantt burglary, the court exercised its discretion under section 1385, subdivision (a), and struck all the prior conviction allegations. In a minute order, the court stated it was striking the prior conviction allegations because they "all refer [to] one case, defendant has cooperated with police in both cases, is addicted to drugs and has not suffered any violent priors." The court calculated a sentence of 16 months, which was one-third the middle term of 4 years.*fn2 The court ordered that this sentence be served consecutive to the sentence on the Kobel burglary, because the two counts reflected "two separate incidents on two separate dates." Nevertheless, the court stated that a sentence of 30 years to life was "appropriate" and that, but for the constraints of the Three Strikes law, it would have ordered that the 16–month sentence on the Gantt burglary be served concurrently. Defendant's total sentence on both counts was 31 years and 4 months to life. The court imposed a $200 restitution fine, and also ordered $400 restitution to Grace Kobel and $20,000 restitution to Barbara Gantt, less the value of any property returned.

Defendant appealed, arguing that his sentence constituted cruel and unusual punishment under the state and federal Constitutions. The Attorney General responded to defendant's argument. He also asserted that the trial court lacked authority under section 1385, subdivision (a), to strike the prior conviction allegations as to the Gantt burglary while not striking them as to the Kobel burglary, claiming that therefore defendant's sentence was unauthorized. The Court of Appeal agreed with the Attorney General, reversed the judgment, and remanded for resentencing. The court reasoned that striking prior conviction allegations as to some, but not all, current counts was inconsistent with the requirement in the Three Strikes law that sentences be consecutive for current felonies relating to separate criminal episodes. (§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).) The court discussed People v. Garcia (1997) 59 Cal.App.4th 834, 69 Cal.Rptr.2d 463 ( Garcia ), which authorized trial courts to strike prior conviction allegations on a count-by-count basis. ( Id. at p. 838, 69 Cal.Rptr.2d 463.) The court argued that the holding in Garcia "eviscerates the requirements of the Three Strikes law that trial courts impose harsh terms for recidivists by sentencing consecutively." The court also distinguished Garcia because in that case the prosecution had agreed to the sentence, calling it a " 'fair disposition.' " ( Ibid.) The court did not address defendant's claim of cruel and unusual punishment, finding that issue "premature until the trial court has resentenced [defendant]."

We granted review in order to address whether, and in what circumstances, a trial court in a Three Strikes case may strike prior conviction allegations as to one count, but not as to another.

Discussion

Section 1385, subdivision (a), authorizes a trial court to act on its own motion to dismiss a criminal action "in furtherance of justice." We have long held that this power includes the ability to strike prior conviction allegations that would otherwise increase a defendant's sentence. ( People v. Burke (1956) 47 Cal.2d 45, 50–51, 301 P.2d 241 ( Burke ).) Our reasoning in Burke is particularly relevant to the issue in this case. In Burke, the defendant had been convicted of possession of marijuana in violation of Health and Safety Code former section 11500 (see now Health & Saf.Code, § 11357, subd. (a)), and he admitted a prior conviction for the same offense. ( Burke, supra, 47 Cal.2d at pp. 47, 50, 301 P.2d 241.) At that time, Health and Safety Code former section 11712 provided: "Any person convicted [of a former section 11500 violation] for having in possession any narcotic ... [¶][i]f such a person has been previously convicted [of a former section 11500 violation] ... shall be imprisoned in the state prison for not less than two years...." (Stats.1953, ch. 1770, § 6, p. 3526; Burke, supra, 47 Cal.2d at pp. 49–50, 301 P.2d 241.) Nevertheless, the trial court struck the prior conviction allegation and sentenced the defendant to county jail. ( Burke, supra, 47 Cal.2d at p. 50, 301 P.2d 241.) The Attorney General asked for reversal of the judgment for the purpose of increasing the sentence. ( Id. at p. 47, 301 P.2d 241.) We noted that "[t]he procedure of 'striking,' or setting aside or dismissing, a charge of a prior conviction ... is commonly used in trial courts ... where ... the trial court has concluded that 'in the interest of justice' defendant should not be required to undergo a statutorily increased penalty...." ( Id. at p. 50, 301 P.2d 241.) We concluded that this power to strike a sentencing allegation fell within the broader power to dismiss an entire action under section 1385. ( Burke, supra, 47 Cal.2d at p. 51, 301 P.2d 241.) More importantly, however, we also concluded that "[t]he striking or dismissal of a charge of prior conviction ... is not the equivalent of a determination that defendant did not in fact suffer the conviction [citations]; such judicial action is taken ... 'for the purpose of sentencing' only and 'any dismissal of charges of prior convictions ... does not wipe out such prior convictions or prevent them from being considered in connection with later convictions' [citation]." ( Ibid.) Thus, we acknowledged that a court might strike a prior conviction allegation in one context, but use it in another.

In Romero, supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, we held that the Three Strikes law did not remove or limit this section 1385 power to strike sentencing allegations. The defendant in Romero pleaded guilty to possession of 0.13 grams of cocaine base, in violation of Health and Safety Code section 11350, subdivision (a). ( Romero, supra, 13 Cal.4th at pp. 506–507, 53 Cal.Rptr.2d 789, 917 P.2d 628.) The information also alleged five prior felony convictions, two of which—attempted burglary (§§ 459, 664) and first degree burglary of an inhabited dwelling (§ 459)—qualified as strikes for purposes of the Three Strikes law. ( Romero, supra, 13 Cal.4th at p. 506, 53 Cal.Rptr.2d 789, 917 P.2d 628.) The trial court struck the prior conviction allegations and imposed a sentence of six years in state prison. ( Id. at p. 507, 53 Cal.Rptr.2d 789, 917 P.2d 628.) This sentence represented three years (the upper term) for possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a); Pen.Code, § 18) plus three consecutive one-year enhancements for prior prison terms (§ 667.5, subd. (b)). ( Romero, supra, 13 Cal.4th at p. 507, 53 Cal.Rptr.2d 789, 917 P.2d 628.) The district attorney objected to the sentence and petitioned for a writ of mandate, which the Court of Appeal granted, concluding that the trial ...


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