PEOPLE v. LEE

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Wendell L. LEE, Defendant and Appellant.

No. B108328.

Decided: November 19, 1997

Lee B. Madinger, under appointment by the Court of Appeal, Long Beach, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.

Wendell L. Lee appeals from the judgment entered after the trial court declined to exercise its discretion to dismiss the finding that appellant had suffered a prior felony conviction which qualified as a strike under the “Three Strikes” laws (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) 1 (hereafter, strike finding) and to resentence him accordingly.

Appellant contends the trial court abridged his due process rights to appear and to be represented by counsel (U.S. Const., 14th Amend.) by failing to conduct a hearing after this matter was remanded for resentencing by this court.   We find neither error nor any constitutional infirmity in the procedure followed by the trial court and therefore affirm the order.

In our earlier opinion filed August 19, 1996, we affirmed the judgment of conviction and remanded the matter for the sole purpose of affording the trial court the opportunity to determine whether to exercise its discretion to strike the strike finding and then, if the court struck the strike, to resentence appellant.

In that opinion, we observed appellant “contend[ed] only that the court may have stricken the prior conviction for purposes of sentencing in this matter if it had realized it had such discretion.”   We concluded that “[s]ince the record does not reveal whether the court would have doubled appellant's sentence, if the law had been clear at the time of sentencing in this matter, remand for that limited purpose is appropriate.”   We then remanded the matter “for the purpose of resentencing in accord with People v. Superior Court (Romero) [ (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.]”  (People v. Lee (Aug. 19, 1996) B096186 [nonpub. opn.] )

Contrary to appellant's assertion, we did not remand the matter in order for the trial court simply to resentence appellant.   If that had been the case, then appellant is entitled to be present personally and with counsel during such resentencing proceeding.  (U.S. Const., 6th & 14th Amends.;  Cal. Const., art. I, § 15;  see also Mempa v. Rhay (1967) 389 U.S. 128, 134-137, 88 S.Ct. 254, 256-258, 19 L.Ed.2d 336;  In re Perez (1966) 65 Cal.2d 224, 228-230, 53 Cal.Rptr. 414, 418 P.2d 6;  § 1193.)

 We hold that the trial court's decision whether to exercise its discretion to strike a prior conviction alleged or found to qualify as a strike under the Three Strikes laws “in furtherance of justice” pursuant to section 1385 is not an integral part of the sentencing hearing, and for that reason, we further hold that a defendant's physical presence or his appearance through counsel at the time of the court's decision is not constitutionally compelled.

 “[A] trial court's general statutory authority to ‘dismiss' an action ‘in furtherance of justice’ under section 1385 includes the power to ‘strike’ a prior conviction for purposes of sentencing, whether or not the conviction has been admitted or established by the evidence.”  (People v. Fritz (1985) 40 Cal.3d 227, 229-230, 219 Cal.Rptr. 460, 707 P.2d 833 cf. § 1385, subd. (b) [abrogating its holding that section 1385 applicable to strike “prior serious felony” enhancement under section 667];  People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Although the striking of a prior conviction may be “for purposes of sentencing,” this is not the equivalent of concluding that the decision whether to exercise that discretion must be made at the sentencing hearing and as part and parcel of the pronouncement of sentence.   On the contrary, the court may strike the prior allegation even before it has been found to be true or after it has been found true or admitted by the defendant at a proceeding prior to sentencing.  (See, e.g., People v. Superior Court (Romero), supra, 13 Cal.4th at p. 524, fn. 11, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

Moreover, outside the Three Strikes context, it is often the case that the record will not reflect any discussion at a sentencing hearing regarding whether the superior court should exercise its discretion to strike an enhancement pursuant to section 1170.1, subdivision (h).   The absence of a ruling under such circumstances does not render void or otherwise invalid the sentence imposed.

 Additionally, the court's decision whether to exercise its discretion to strike a prior results in an order which, albeit not itself appealable, is subject to review independent of the court's sentencing rulings.  (See, e.g., People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

In contrast, the issue in the Three Strikes scenario has been whether the matter should be remanded to allow the superior court an opportunity to exercise its discretion since the reviewing court cannot determine from the silent record whether the court was aware it had discretion.   A remand for this purpose does not compel the resentencing of the defendant unless the court exercises its discretion and strikes one or more of the strike priors.   If the court declines to exercise its discretion, then it simply reinstates the same sentence.   Appellant is not entitled to be “resentenced” in the sense that a new sentencing hearing is held.

 When viewed in context, it is clear that when we “remanded [the matter] for the purpose of resentencing in accordance with [Romero], supra[,]” what we meant was that on remand, the trial court was directed to decide whether to exercise its discretion to dismiss the strike finding “in furtherance of justice” (§ 1385, subd. (a)) and in accordance with the principles and guidelines enunciated by our Supreme Court in Romero and if the strike were stricken, then the court was to resentence appellant accordingly.

On remand, the trial court did not hold a hearing on the issue of whether it should exercise its discretion to strike that finding.   Instead, on November 21, 1996, the court simply issued the following order:

“A review of the criminal file shows that the defendant had been under Juvenile Court and Youth Authority supervision since age 14.   In 1990, he was committed to State Prison for an involuntary manslaughter with personal use of a firearm.   The instant matter appears to be evidence of [ongoing] criminal behavior that makes the defendant a definite threat to the community.  [¶] Based on this defendant's criminal history, it would be an abuse of discretion for any reasonable judge to strike a prior.  [¶] The sentence heretofore imposed on September 20, 1995 is ordered into full force and effect.   The motion for relief re Romero is denied.”

Contrary to appellant's assertion, nothing more is compelled.   At the time our prior decision was rendered, the law was unclear regarding the appropriate procedure where the record is silent concerning whether the trial court was aware of its discretion to dismiss a strike allegation or finding.2

At oral argument, appellant's attorney argued that the record was not silent and referred to appellant's position in his opening brief of the prior appeal that the reporter's transcript reflected the trial court's belief that it lacked discretion.   The record refutes appellant's assertions.   As we pointed out in our earlier opinion, “[t]he record on this issue reveals that at the time of sentencing appellant's counsel argued that the law was unclear as to whether prior convictions which resulted from a negotiated plea qualified as strikes under the new Three Strikes sentencing scheme.   The court replied that the prior felony alleged in this case (involuntary manslaughter with personal use of a firearm) was a valid prior felony and would be treated as such.”   It was in this context that the trial court stated “I intend to follow that law and as it now exists and [in] the imposition of sentence in this case.”

The above recital does not reflect the trial court's belief that it was without discretion to dismiss the strike finding “in furtherance of justice” pursuant to section 1385.   Whether a prior conviction qualifies as a strike is simply and solely a legal issue, the determination of which the trial court has no discretion.   Accordingly, in denying appellant's oral motion to dismiss or strike the strike finding on this ground, the trial court was merely making a legal determination and not announcing or indicating a stance on the exercise of discretion under section 1385, which issue appellant never raised below.3

In the abundance of caution, we adopted the procedure of remanding the matter to afford the trial court an opportunity to exercise its discretion and for a new sentencing hearing only if the strike finding were stricken.   Subsequent to our prior decision and the trial court's order on remand, our Supreme Court settled the issue otherwise.

In People v. Fuhrman (1997) 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189, the court held that “it is [not] necessary, or appropriate, to compel a new sentencing hearing in every pre-Romero case in which the record is silent as to whether the trial court understood it retained discretion to strike one or more prior felony conviction allegations under section 1385.   The procedure urged by defendant, involving a new sentencing hearing in every pre-Romero silent record case, would entail an unduly cumbersome and costly process, necessitating the transportation of a large number of inmates from prisons around the state to the various courts (§§ 977, subd. (b)(1), 1193, subd. (a)), because it would require a new sentencing hearing regardless of whether the trial court originally misunderstood the scope of its sentencing discretion and regardless of whether any realistic possibility exists that the trial court would have exercised its discretion to strike one or more qualifying prior convictions.   We do not believe that such a remand en masse would represent a wise use of scarce judicial resources.

“Denial of remand on appeal in such cases does not leave a defendant who possesses a meritorious claim, supporting the exercise of discretion in his or her favor, without an effective remedy.   A defendant in such a case is free to file a petition for writ of habeas corpus in the sentencing court, setting forth the circumstances that would support setting the matter for a new sentencing hearing and striking one or more prior serious or violent felony convictions pursuant to the provisions of section 1385.   In the event the sentencing court concludes that the petition filed by such a defendant has possible merit, the court may seek an informal response from the People or issue an order to show cause.   If, on the other hand, the court concludes that the petition fails to establish any basis upon which to invoke its discretion under section 1385, the court may summarily deny the petition.”  (People v. Fuhrman, supra, 16 Cal.4th at p. 946, 67 Cal.Rptr.2d 1, 941 P.2d 1189, fn. omitted.)

In the context of a silent record, Fuhrman specifically rejected, as applicable, the “new sentencing hearing” procedure prescribed in In re Cortez (1971) 6 Cal.3d 78, 88-89, 98 Cal.Rptr. 307, 490 P.2d 819.   The court “conclude[d] that a defendant's rights will be fully and adequately protected by affording the defendant an opportunity to file a petition for writ of habeas corpus in the sentencing court ․, and by having the sentencing court issue an order to show cause if that court finds that the petition has possible merit.” 4  (People v. Fuhrman, supra, 16 Cal.4th at p. 946, at fn. 10, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)

Mindful of the foregoing, we conclude that on remand the trial court did not err or abridge appellant's due process rights by failing to hold a new sentencing hearing and by deciding not to exercise its discretion to dismiss the strike finding based upon valid reasons, the merits of which decision appellant does not challenge.5  (Cf. People v. Vong (1997) 58 Cal.App.4th 1063, 1065-1068, 68 Cal.Rptr.2d 436;  People v. Banks (1997) 59 Cal.App.4th 20, ----, 68 Cal.Rptr.2d 731.)

DISPOSITION

The judgment is affirmed.

I concur with the conclusion of the majority opinion that this case should be treated as a “silent record” case.   If People v. Fuhrman (1997) 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189 had been decided prior to our initial opinion we would not have remanded the matter for resentencing and appellant would have been left with the option of seeking relief through a petition for habeas corpus.   Under that circumstance the trial court could have summarily denied the petition without the presence of defendant.  (Id. at 946, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)   Thus, under the circumstances of this case, in the words of Los Angeles Laker announcer Chick Hearn, “No harm no foul.”

I do not believe we need to address the broader issue resolved by the majority;  that under any circumstances presented remand for resentencing pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 does not require the presence of the defendant.   Accordingly, I do not join in that determination.

FOOTNOTES

1.   All further section references are to the Penal Code unless otherwise indicated.

2.   The record reflects that the information charged appellant with possessing for sale cocaine base (Health & Saf.Code, § 11351.5) on or about March 11, 1995, and that he had suffered a prior conviction in 1990 for involuntary manslaughter (§ 192, subd. (b)), which qualified as a strike under both “Three Strikes” laws.   On August 3, 1995, the jury found appellant guilty of the charged drug offense.   Appellant then admitted the strike allegation, which the trial court impliedly found to be true.On September 20, 1995, the trial court sentenced appellant to prison for the total term of ten years, or double the five-year upper term under the first Three Strikes law (§ 667, subds.(b)-(i)).Initially, we note that appellant's current crime occurred after the first Three Strikes law (§ 667, subds.(b)-(i)) and the subsequent Three Strikes initiative (§ 1170.12, subds.(a)-(d)) became effective, respectively, on March 7, 1994, and November 9, 1994.  (See, e.g., People v. Caceres (1997) 52 Cal.App.4th 106, 110, 60 Cal.Rptr.2d 415 (review den.).)   We further note that whether the Three Strikes initiative superseded or repealed the first Three Strikes law is a matter our Supreme Court expressly has declined to reach.  (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 505, at fn. 2, 53 Cal.Rptr.2d 789, 917 P.2d 628;  People v. Hazelton (1996) 14 Cal.4th 101, 109, at fn. 3, 58 Cal.Rptr.2d 443, 926 P.2d 423.) We conclude that in this context, the application of one rather than the other Three Strikes law makes no difference.  (See, e.g., People v. Caceres,supra, at p. 110, 60 Cal.Rptr.2d 415.)Accordingly, it is of no legal import that the clerk's transcript recites that appellant admitted the strike allegation under section 1170.12, subdivisions (a) through (d) while the trial court sentenced appellant pursuant to section 667, subdivisions (b) through (i).

3.   The record further reflects that to the extent appellant urged the trial court to exercise discretion, he did so only in the context of the actual sentence to be imposed.After denial of his motion to dismiss or strike, appellant's attorney argued, “Then in a different direction, ․ The court heard the evidence in this case, although it was tried by a jury, where there was [a] minimal type of contraband that was involved in this case.   And my question, just rhetorical, is that type of conduct and the amount of contraband that was found worth 10 years in state prison?   I am sure the court has some thoughts in mind about a sentence in this case, otherwise I don't believe the court would have requested ․ a recommendation by the People and by the defense counsel.   We all know what the maximum sentence calls for.”   It was in this context the court stated, “Let me indicate to you, [appellant's attorney], I have to follow the law and I intend to follow the law.”   After finding the existence of aggravating factors and no mitigating factors, the court then selected the five-year upper term and doubled it to ten years under the Three Strikes sentencing scheme.

4.   We observe that on November 12, 1997, our Supreme Court denied review in People v. Bierman (Cal.App.) B099657, a silent record case, and remanded the matter with directions to vacate its decision and reconsider in light of Fuhrman.

5.   The issue of whether appellant's presence is required when the trial court decides whether to exercise its discretion under section 1385 may be resolved in People v. Rodriguez (S055670, review granted Oct. 23, 1996).

BARON, Associate Justice.

CHARLES S. VOGEL, P.J., concurs.

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