P. v. Peoples

Filed 11/29/05 P. v. Peoples CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE, Plaintiff and Appellant, v. MILTON DEVON PEOPLES, Defendant and Appellant.

C047056 (Super. Ct. No. SF088229A)

The People appeal the trial court’s decision to dismiss two of defendant’s prior strikes pursuant to Penal Code section 1385.^[1] The People contend this decision was an abuse of discretion, because defendant was on probation at the time he committed the current offense, and he falls within the spirit of the “Three Strikes” law. Defendant also appeals, claiming the court imposed an unauthorized sentence by imposing consecutive five-year sentences under section 667, subdivision (a) and requests we modify his sentence from 20 years to 15. The People improperly concede that the sentence was unauthorized, but do not agree with defendant’s proposed disposition. We agree with the People that the trial court abused its discretion in dismissing two of defendant’s strikes. However, due to errors in the court’s advisement of defendant as to the maximum sentence he was subject to should we reverse the dismissal of those strikes, the matter cannot simply be resentenced and the matter must be remanded to the trial court. Because we must reverse for resentencing, we need not address defendant’s claims on appeal.

STATEMENT OF FACTS

On March 26, 2003, defendant went into a Bank of America and placed a white envelope in front of the teller, Brian Romero. On the envelope was written “Give me $4,200 in large bills. I have a gun and I will use it.” Romero counted out forty-two $100 bills and placed the money on the counter. Defendant left the bank with the note and the money.

Defendant also had three prior strike convictions for robbery (§ 211), all of which were brought and tried together. Specifically, on December 29, 1997, defendant entered a Bank of America and handed the teller a note saying, “I have a gun, give me $3,500 in $100 bills. I have a gun and I will shoot everyone.” On January 8, 1998, defendant went into a Bank of the West branch and handed the teller a note saying, “This is a robbery. I want $3,500 in large bills. I have a gun and I will shoot.” On January 15, 1998, defendant went to a Bank of America and handed the teller a note to give him $3,500 in large bills or he would shoot everyone in the bank. On July 6, 1998, defendant was granted five years’ probation for these three offenses.

PROCEDURAL HISTORY

Defendant was charged with second degree robbery. It was further alleged he had three prior serious felony convictions under sections 1170.12, subdivision (b) and 667, subdivisions (a) and (d).

On April 7, 2004, defendant indicated he wanted to change his plea to guilty. The court informed defendant, “I said I would give you 20 years at 85 percent, which means that you have to do 17 years before you’re eligible for parole.” The court also noted, “The D.A. is taking exception of [sic] me striking two strikes, so there’s a chance they’re going to file a writ in the Third District Court of Appeal[] to reverse me striking the strikes. [¶] Do you understand that? Was that explained to you?” The court continued, “In other words, the D.A. is against me striking two of your three strikes to give you 20 years.” Defendant answered, “Okay. I understand that part.” The court went on, “And the reason I’m going to justify it is I looked at your rap sheet. I didn’t see any signs of violence, even though you have three prior 211s. They were all the same. They were bank robberies with a note, and there didn’t seem to be any weapons involved, at least none were ever shown. And for that reason, I’m going to strike two of the strikes, and also because I think 17 years is a big hunk of time. [¶] But the D.A., if they want, can file a writ. And if the Third District Court of Appeal[] agrees with their writ, they will reverse me striking the strikes. [¶] Do you understand what that means?” Defendant confirmed he did. The court continued, “That means you’re going to be doing 25 to life, as opposed to 20 years. And you have to do all 25 before you’re eligible for parole. [¶] Is that your understanding?” Defendant answered, “Yes.”

After receiving the standard plea advisements, defendant pled no contest to committing second degree robbery on March 26, 2003. Defendant also admitted the three prior robbery convictions.

At sentencing, the court asked, “Is the defendant going to waive any defect with the -- giving the 667(a’s) consecutive?” Both defense counsel and the defendant agreed to that waiver. The court sentenced defendant to the upper term of five years on the second degree robbery conviction; that term was doubled to 10 years because of one strike (§ 1170.12, subd. (b)). In addition, the court sentenced defendant to two consecutive five-year terms for the prior felony convictions under section 667, subdivision (a) for an aggregate sentence of 20 years.

The court then formally dismissed two of the strike convictions, stating as his reasons: “One, those three strikes he was granted probation back in 1998, so I don’t know what the circumstance -- I know that they were bank robberies and they were similar to the one that was committed now, but whoever handled that case failed [sic] appropriate to grant probation to defendant. [¶] Two, there was never any gun visible in any of the strikes. I know there was a threat of the use of a gun, but none was ever exhibited or exposed to the tellers. [¶] Three, the defendant has no prior gun arrest or convictions. And I know the defendant has some prior felony convictions, but he’s never once been convicted of possessing a weapon. [¶] And four, the Court thinks 20 years -- that the 85 percent is a 17 year term of incarceration. The defendant presently being 32. That means the defendant will be almost 50 before he gets released from jail. He’ll be 49 in some months. [Sic.] And the Court feels that the 20 year sentence at 85 percent is a harsh enough sentence for the conduct that was exhibited during this particular offense.”

DISCUSSION

I

On appeal, the People contend that the trial court abused its discretion in dismissing two of defendant’s prior strikes. We agree.

We review a trial court’s decision whether to dismiss a prior strike conviction under the abuse of discretion standard. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (hereafter Carmony).) However, we must defer to the Legislature’s decision to protect the public by requiring longer incapacitation of criminals who have already committed at least one violent or serious crime. (Ewing v. California (2003) 538 U.S. 11, 29-30 [155 L.Ed.2d 108, 122-123].)

The Three Strikes law is intended to restrict a court’s discretion in sentencing repeat offenders. (Carmony, supra, 33 Cal.4th at p. 377.) In exercising its discretion whether to strike a prior conviction for purposes of sentencing, a trial court “‘must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.) In balancing the appropriate factors, “no weight whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. [Citation.]” (People v. Williams (1998) 17 Cal.4th 148, 161.)

“Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Here, it does not appear from the record that the trial court balanced the relevant factors. At the time of sentencing defendant was 32 years old, with a 10th grade education. He is married with four children. He owes a “considerable amount” of child support with respect to one of his children. He has a history of drug use and associating with gang members. He has 10 felony convictions and six separate prison sentences. These felony offenses include drug possessions, auto theft, and conspiracy, as well as the three prior convictions for bank robbery. Other than his first conviction, he was on probation or parole at the time he committed each offense. His juvenile record started when he was 12 years old. Defendant admitted he had “done a few things wrong in his life, but nothing that would make him ashamed.” There is nothing in this record that even remotely suggests “‘defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)

Rather, it appears from the record that the court fashioned this sentence with the defendant because it believed that “the 20 year sentence at 85 percent is a harsh enough sentence for the conduct that was exhibited during this particular offense.” But, "[u]nder our statutory framework, judges are not empowered to fashion any sentence they choose. The Legislature has created a sentencing structure within which every court must operate. . . . A court may not simply substitute its own opinion of what would be a better policy, or a more appropriately calibrated system of punishment . . . .” (People v. McGlothin (1998) 67 Cal.App.4th 468, 476-477.) In fashioning its own sentence in this manner without considering the relevant factors, the trial court abused its discretion in dismissing two of defendant’s strike convictions.

II

Defendant contends the judgment must be vacated and he must be given the opportunity to withdraw his plea. He argues that although he was advised if the prosecutor successfully appealed, he would face a 25-year-to-life sentence, the advisement was in error as the imposable sentence was 30 years to life. The People, on the other hand, argue defendant should not be permitted to withdraw his plea as he was fully advised and warned of the consequences of a possible reversal and cannot show any prejudice from the court’s misadvice.

Given the lengthy exchange between the court and defendant regarding the possibility of this court reversing the trial court’s sentencing choice, it would appear defendant was fully aware of the sentence he was facing. However, as defendant points out, he was advised he was facing a sentence of 25 years to life, when in fact, he was facing a sentence of 30 years to life. On these facts, we cannot agree that defendant should not at least have the opportunity to withdraw his plea. (See People v. Walker (1991) 54 Cal.3d 1013, 1020-1026; People v. Cruz (1988) 44 Cal.3d 1247.)

DISPOSITION

The order striking two of defendant’s three prior felony convictions is reversed. The cause is remanded to the trial court with directions to grant defendant leave to withdraw his plea of guilty and his admission of three prior serious felony convictions on appropriate motion filed within 30 days of this opinion becoming final. If defendant elects not to withdraw his plea and admissions, the trial court is directed to resentence the defendant. In all other respects, the judgment is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Unless otherwise indicated, further statutory references are to the Penal Code.