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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Jerry GARCIA, Defendant and Appellant.

No. 113080.

Decided: March 18, 1998

Robert Navarro, under appointment by the Court of Appeal, Cloverdale, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.

Jerry Garcia appeals from the judgment entered following a court trial resulting in his conviction for two first degree burglaries, with findings he had five prior serious convictions of residential burglary (Pen.Code, § 667, subd. (a)(1)), which qualified as one prior serious felony enhancement and as five “strikes” within the meaning of the Three Strikes law (Pen.Code, §§ 667, subds. (b) to (i);  1170.12).   The court additionally found appellant had three prior felony convictions for which he had served separate prison terms.  (Pen.Code, § 667.5, subd. (b).)  He contends the aggregate term of 31 years, 4 months to life constitutes cruel and unusual punishment.   The People contend the 31-year-4-month-to-life aggregate term constitutes an unauthorized term of punishment.   We reverse and remand for resentencing.


On June 19, 1996, Barbara Gantt left her Gardena residence suddenly to go to the hospital.   When she left, she inadvertently left a window open.   During her absence, someone burglarized her residence.   While cleaning up after the burglary, she found appellant's wallet and driver's license among some papers on her floor.

On September 4, 1996, Grace Kobel returned home to her Torrance residence just as appellant bicycled out of her driveway with two bags of her personal property.   He had broken a window to secure entry.   A police officer stopped appellant several blocks away with the loot.   After a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), appellant admitted both burglaries and told the police he had committed four additional burglaries.1

During the trial, the court found true a prior serious felony enhancement, five “strikes” and three prior prison term enhancements.

A third residential burglary was alleged in the information in count 2, but was dismissed pursuant to Penal Code section 1118.1 after the People failed to present evidence of that burglary.

At sentencing, the court read and considered a probation report stating that 33-year-old appellant had the following criminal history:


The probation report indicated that appellant admitted committing six burglaries and he had traded the loot for drugs.   In the burglary in count 2, which was dismissed, the victim's loss was $7,000.   Appellant claimed poly-drug abuse.   Appellant was currently on parole and was unemployed.

At the sentencing hearing, victim Kobel made a statement to the court in which she complained she lost jewelry of sentimental value during the burglary.   Her total losses amounted to about $500.   She was traumatized by the burglary and was devastated by the intrusion;  she now felt compelled to get a security system.   Victim Gantt told the court she was severely affected by the burglary;  she now suffered nightmares.   Gantt's granddaughter lost her engagement ring and Gantt lost jewelry of sentimental value which she could not replace on her minimum salary.   Altogether, she lost about $22,000 worth of property.   She had no insurance.   Both victims asked for a maximum term of punishment.

Appellant's girlfriend, Tonia Kirby, explained to the court that appellant had a hard life.   He was abandoned as a child by both parents.   He had been placed in numerous foster homes where he was treated miserably.   By age 12, he was a heroin addict.   She and appellant were both involved in drugs, but wanted to change their lives.   Appellant's imprisonment would be hard on her and her children.   She wondered what good such lengthy incarceration would accomplish.

Appellant told the court he was sorry about the burglaries and wanted the victims' forgiveness and to pay them back and to repay his debt to society.

Defense counsel urged that, but for appellant's admissions to police, he would not have incurred multiple current convictions.   Appellant was not violent.   His criminal conduct was a product of drug abuse.   Defense counsel suggested that the court strike four “strikes” and sentence appellant upwards to the 22-year, 8-month maximum term available for a second-strike offender.   Defense counsel urged that such leniency was appropriate since appellant's strikes arose from only one earlier period of aberrant behavior.

The prosecutor replied that the People were opposed to leniency.   The record did not unequivocally show appellant's motivation to steal arose from drug abuse;  there was better evidence he was a thief and a career criminal.   In 1991, he blamed a separation from his wife for the burglaries, not drug abuse, and there was other evidence his drug abuse was not the primary motivating factor for his stealing.   Appellant had nine total theft convictions apart from his 1991 convictions, which dated to 1985.   He had ample opportunities for rehabilitation during periods of probation and parole, but always had returned to a criminal lifestyle.

The court observed it did not feel good about imposing a 55-year minimum life term for the burglaries, but the court believed it had little choice.   The court explained the five 1991 burglaries consisted of five separate and different criminal episodes.   The only reason the court would sentence appellant as a second-strike offender would be to avoid imposing the harsh terms selected by the Legislature for the punishment of three-strikes offenders.   To strike for that reason alone would amount to an abuse of discretion.

The court inquired of counsel if the court could impose a three-strikes life term for one current burglary, but treat appellant as a second-strike offender for the other burglary.   The court explained it did not wish to treat appellant as a second-strike offender as to both current burglaries since it found the record contained the following aggravating circumstances:  (1) appellant had five prior residential burglary convictions which were “strikes”;  (2) he had victimized two new families in these burglaries almost as soon as he was released from prison;  (3) if the law was meant for anyone, it was meant for appellant.

The court observed it personally disagreed with the length of the terms imposed under the Three Strikes law;  but the court had no legal justification for disregarding the law.   The court was taking into full account the feelings of the victims.   The court was convinced that appellant's wrongdoing was not motivated by drug abuse.

Trial counsel interrupted the court and suggested that if the court was to disregard appellant's claims his crimes were drug-motivated, counsel wished the additional opportunity to produce evidence on that issue.   The court continued the sentencing hearing.

At the continued sentencing hearing, Margarete Gonzales, appellant's aunt, testified that appellant's stepfather drank and severely beat appellant's mother and the children when appellant was young.   Appellant had always told Gonzalez that his drug abuse was a product of the abuse he suffered as a child.

Defense counsel provided the court with a report in which appellant's former wife stated appellant did well for a while in 1991 on parole before he returned to drug use, a 1987 police report for a drug arrest in which appellant told police he was using methamphetamines, as well as heroin, and another report indicating appellant had a possible bi-polar disorder.   Defense counsel urged that an individualized consideration of appellant's situation would permit the court to strike four of the “strike” convictions.   Appellant was not simply the “worst of the worst,” and should be sentenced as a second-strike offender.

The court stated it would impose one three-strikes life term, then impose a consecutive two-strikes term for the other burglary.   That way appellant would spend “40-odd” years in prison before he was paroled.   To sentence appellant in this fashion would result in a sentence which the court felt was appropriate.   The court reiterated it would not treat appellant as a second-strike offender for both current offenses.

The prosecutor objected, reminding the court that the People believed appellant, as a fifteen-year recidivist, should be sentenced to the legislatively-mandated term.   The prosecutor said he was still skeptical about appellant's claim his crimes were solely motivated by drug use and pointed out appellant had made statements he was committing burglaries for other purposes.   The prosecutor reminded the court of the victims' description of the sense of devastation they suffered from the burglaries.   The prosecutor also urged that whether appellant was violent had not been tested since appellant fortunately had never encountered anyone during a burglary.

The court stated there were few mitigating factors in the case, but the court found the 55-year aggregate term to be too harsh.   The court found appellant's prior offenses to be drug-motivated, which was a factor in mitigation, and the court mentioned that the court's sentence hardly gave appellant a “break.”

The People reminded the court, before trial, appellant turned down the People's offer of a 30-year-to-life term.   The prosecutor also told the court victim Gantt had requested appellant to give her any assistance he could, such as the name of any pawn shop he had used, so she could attempt to recover the property he had stolen from her.   The court replied that appellant had offered to do that and he had expressed a lot of remorse.

The court then imposed the aggregate term.

In mitigation, the court found:  (1) all of appellant's “strikes” arose from his 1991 convictions, which involved one period of aberrant behavior for which he had served one prison term;  (2) appellant confessed his wrongdoing to police at an early stage of the proceedings and at a point when the police could make their case against him;  (3) he cooperated with the police;  (4) drug addiction motivated his criminal conduct;  (5) he had no record of violence;  and (6) the current offenses involved no threat of violence.

The court stated that appellant deserved to be severely punished for his offenses and the court's sentence was consistent with the legislative and voters' intent in enacting the Three Strikes law.

For the burglary in count 1, the court imposed a 30-year term, consisting of a 25-years-to-life term for the burglary, enhanced by five years for the prior serious felony conviction.

For the burglary in count 3, the court struck all the alleged “strikes” under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 for the reason that a term of 31-years-4-months-to-life was sufficient punishment for the two burglaries.   The court then imposed a consecutive subordinate term of 16 months (one-third the middle term of four years) under Penal Code section 1170.1.   The court stated it was imposing the subordinate term consecutively since the burglaries constituted two separate incidents occurring on different dates.

The minute order states:  “Court exercises its Romero discretion and strikes all priors as to count 3. Reasons are strikes all refer [to] one case, defendant has cooperated with police in both cases, is addicted to drugs and has not suffered any violent priors.”


We agree with the People's contention that the court's effort at granting leniency resulted in the imposition of an unauthorized term.   The Three Strikes law is clearly not structured to accommodate the sentence imposed here.   The triggering of the Three Strikes law does not occur in isolation for each count.   Furthermore, for the court to find that it could punish the separate current convictions variously by third-strike, second-strike or no-strike terms does violence to the statutory scheme and the intent of the Legislature and voters to restrict trial court discretion in sentencing repeat offenders.   This is particularly so in view of the provisions requiring consecutive terms when there are multiple current felonies which constitute separate criminal episodes.

We are aware that a contrary conclusion was reached in People v. Garcia (1997) 59 Cal.App.4th 834, 837, 69 Cal.Rptr.2d 463, as modified at 60 Cal.App.4th 1241a (rev.den.).   In Garcia, appellant was convicted in counts 1 and 2, of robbery and burglary, for entering a store and robbing its owner;  in count 3 of robbery of another store owner, on a different date as the owner was leaving his store;  and in count 4 of burglary on yet a third occasion when appellant entered a store, demanded “taxes” from the store owner, took several pairs of pants and fled from the store.   Appellant was sentenced to a three-strikes indeterminate term of 25 years to life for the robbery in count 1;  the count 2 burglary was stayed pursuant to Penal Code section 654;  and for counts 3 and 4, the court imposed mandatory consecutive second-strike, doubled terms of imprisonment.  (See People v. Garcia, supra, 59 Cal.App.4th at pp. 835-836, 69 Cal.Rptr.2d 463, as modified at 60 Cal.App.4th at page 1241b.)

On appeal, the Garcia court concluded that a trial court has the discretion to strike one or more prior convictions as to some, but not all, counts.   The court stated the trial court's discretion under Penal Code section 1385 was sufficiently broad so as to allow treating the counts differently.  (Ibid., at p. 838, 69 Cal.Rptr.2d 463.)

We are of the opinion that Garcia does not take into account that treating each count differently eviscerates the requirements of the Three Strikes law that trial courts impose harsh terms for recidivists by sentencing consecutively.

Furthermore, Garcia is distinguished by the posture the People took vis-à-vis the court's sentence.   In Garcia, the prosecutor told the trial court after an off-the-record sentence conference that she considered the court's intended sentence a “ ‘fair disposition.’ ”  (Ibid., at pp. 837-838, 69 Cal.Rptr.2d 463.)   This case is different.   There was no acquiescence in the court treating the counts differently.   The prosecutor vigorously objected and opposed imposing a three-strikes indeterminate life term for count 1 and a no-strike subordinate term under Penal Code section 1170.1 for count 3. The prosecutor's acquiescence in Garcia may well have estopped the People from complaining about the unauthorized term in the eyes of the appellate court.

We have not addressed the cruel and unusual punishment contention appellant raises on appeal.   We concluded the issue is premature until the trial court has resentenced appellant.   The trial court on remand should address the contention if appellant raises the issue again during resentencing.


The judgment is reversed and remanded for resentencing in conformity with the views expressed herein.   In all other respects, the judgment is affirmed.


1.   The officer who took appellant's statement testified that appellant was aware of the Three Strikes law upon his arrest.   Appellant initiated discussions about making a deal with the police to avoid Three Strikes punishment, which the officer told him would probably be about 45 years to life.   Appellant took the officers to each burglary location.   The officer told him that any dealmaking as to a three-strikes sentence could be accomplished only in court.

FN2. Appellant's date for parole is taken from the Penal Code section 969b package used to establish the truth of his prior convictions..  FN2. Appellant's date for parole is taken from the Penal Code section 969b package used to establish the truth of his prior convictions.

WOODS, Associate Justice.

LILLIE, P.J., and NEAL, J., concur.