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The People v. Alberto Hernandez

August 9, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
ALBERTO HERNANDEZ, DEFENDANT AND RESPONDENT.



(Super. Ct. No. SF118952A)

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

P. v. Hernandez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following an unreported pretrial conference, defense counsel indicated that defendant Alberto Hernandez desired to resolve the case as outlined by the trial court. Defendant would plead guilty to petty theft with a prior and the trial court would sentence him to the low term of 16 months in prison, doubled for a prior strike, but the trial court would dismiss a second strike allegation. The prosecutor objected to the proposed resolution and asked the trial court to state a reason for dismissing the second strike allegation. The trial court replied, "I think . . . it's unconstitutional and cruel and unusual punishment to do life for a petty theft." The prosecutor said "[i]t sounds like . . . you disagree with the three-strikes law, because a three-strikes law petty theft can result in that;" the trial court answered, "yeah, I guess I do in that." Defendant pleaded guilty and the trial court sentenced him to prison for the low term of 16 months, doubled for a prior strike.

The People appeal (Pen. Code, § 1238, subd. (a)(8) & (10);*fn1 People v. Trujillo (2006) 40 Cal.4th 165, 173), contending the trial court (1) entered into an unlawful judicial plea bargain, (2) abused its discretion by dismissing a prior strike without considering the Williams*fn2 factors and without recording its reasons for striking the prior conviction in the court minutes, and (3) incorrectly concluded that a third-strike sentence for petty theft would constitute cruel and unusual punishment.

We conclude (1) the trial court entered into an unlawful judicial plea bargain, (2) the trial court improperly dismissed the prior strike allegation without considering the Williams factors or stating its reasons in the court minutes, and (3) because we reverse and remand for further proceedings, we need not reach the People's third contention.

BACKGROUND

The matter was resolved by plea and defendant waived referral to probation. Accordingly, our statement of facts is taken from the prosecutor's statement of the factual basis for the plea. On November 13, 2011, defendant entered a Wal-Mart store on Hammer Lane, concealed $100 worth of items, and left the store without paying for them. Defendant has three prior theft-related convictions for which he served periods of incarceration: a Merced County conviction in March 1987 for receiving stolen property, a Fresno County conviction in April 1990 for vehicle theft, and a San Joaquin County conviction in September 2008 for petty theft with a prior.

The complaint in this case accused defendant of petty theft with a prior theft-related conviction. (§ 666.) The complaint alleged defendant had three prior theft-related convictions (§ 666) and two prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12).

Following an unreported "pretrial conference or pre-prelim conference," defense counsel indicated defendant's desire to resolve the case "around the lines of what the Court outlined . . . ." If defendant were to plead guilty or no contest to the present charge, admit the theft priors, and "admit one of the enhancements under" section 1170.12, the trial court would impose double the low base term. The trial court said it would also dismiss the second strike allegation. The prosecutor "noted for the record this disposition is over the DA's objection."

Before taking the plea, the trial court told defendant: "Your record doesn't suggest that you deserve any real breaks. On the other hand, I think it's way over the top to suggest that you should be doing life for petty theft." When the prosecutor asked the trial court to state a reason for the dismissal, the trial court replied, "I think that for this offense, a petty theft, essentially a petty theft with a prior, that it's unconstitutional and cruel and unusual punishment to do life for a petty theft." When the prosecutor said, "[i]t sounds like you're saying you disagree with the three-strikes law, because a three-strikes law petty theft can result in that," the trial court answered, "Yeah, unless there's -- yeah, I guess I do in that." The trial court invited the prosecutor to seek extraordinary writ relief.

Defendant pleaded guilty to petty theft with a prior. He admitted the three theft-related convictions and one of the prior serious felony convictions, a 1994 conviction for lewd acts with a child. (ยง 288, subd. (a).) The trial court dismissed the second prior serious felony allegation, a February 2000 conviction for lewd acts with a child. Defendant waived referral to probation and the trial court sentenced him to prison for the low term of ...


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