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PEOPLE v. AYERS

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

The PEOPLE, Plaintiff and Respondent, v. Montrae AYERS, Defendant and Appellant.

No. B165908.

Decided: June 24, 2004

Jill Lansing, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria Wilson and Michael W. Whitaker, Deputy Attorneys General, for Plaintiff and Respondent.

Montrae Ayers appeals the judgment entered following his conviction after a jury trial for a gang-related attempted murder, attempted robbery and several other related offenses.   On appeal Ayers argues he was denied the effective assistance of counsel during trial.   He also contends the trial court committed sentencing error.   We return the matter to the trial court to impose corrected sentences for the premeditated attempted murder and attempted robbery convictions and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ayers and Shane Plaid are fellow gang members.   Ayers went to Matthew Henson's home and demanded money after Henson had identified Plaid to police as a drive-by shooting suspect.   Henson refused the demand.   Ayers later returned to Henson's home and repeated his demand for money.   Henson again refused.   Ayers shot Henson twice in the head.

A jury convicted Ayers of attempted willful, deliberate and premeditated murder (count 1), assault with a firearm (count 2), attempted home invasion robbery (count 3), possession of a firearm by a felon (count 4) and threatening a witness (count 5).

The jury found as to counts 1 and 3 that Ayers personally and intentionally discharged a firearm, which proximately caused great bodily injury;  as to counts 1, 2, 3 and 5 that Ayers committed the offenses for the benefit of a criminal street gang;  and as to count 2 that Ayers personally inflicted great bodily injury and personally used a firearm.   The jury also found that Ayers had suffered a prior serious felony conviction, making him eligible for sentencing under the “Three Strikes” law, and that he had served a separate prison term for a felony.

Ayers was sentenced to an aggregate term in state prison of 62 years four months to life.   On count 1, attempted premeditated murder, Ayers was sentenced to a total of 59 years to life: 14 years to life for the base term (double the seven-year minimum term of confinement before eligibility for parole prescribed by Penal Code section 3046, subdivision (a)(2)), plus 15 years for the gang enhancement, plus 25 years to life for the firearm use/great bodily injury enhancement, plus five years for his prior serious felony conviction.   On each of counts 3 and 4 (attempted robbery and felon in possession of a firearm), he received a consecutive term of eight months (one-third of one-half the middle term on count 3 and one-third the middle term on count 4).   On count 5 (threatening a witness), Ayers was sentenced to a further consecutive term of two years (one-third the middle term of three years for the substantive offense, plus one-third the middle term of three years for the street gang enhancement).   His sentence of four years plus applicable enhancements on count 2 (assault with a firearm) was stayed pursuant to Penal Code section 654.

DISCUSSION

1.-2. **

3. Ayers Must Be Resentenced on Count 3

 We requested supplemental briefing from the parties to address whether the trial court erred in computing the subordinate term on count 3 (attempted robbery) as simply one-third of one-half of the middle term of four years, or eight months, in light of the fact the People had pleaded and proved Ayers was a second strike offender-an issue not raised in either the trial court or the parties' appellate briefs.   Both Ayers and the People agree that under the Three Strikes law the subordinate term for qualifying offenses for a two-strikes defendant should be double one-third of the middle term (Pen.Code, §§ 667, subd. (e)(1);  1170.12, subd. (c)(1);  People v. Nguyen (1999) 21 Cal.4th 197, 207, 87 Cal.Rptr.2d 198, 980 P.2d 905), which in this case results in a term of 16 months on court 3. Ayers and the People disagree, however, as to whether the eight-month term imposed on count 3 is an “unauthorized sentence” that may be identified and corrected on appeal even though there was no objection in the trial court.  (People v. Smith (2001) 24 Cal.4th 849, 854, 102 Cal.Rptr.2d 731, 14 P.3d 942.)

 “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case.”   (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   In such circumstances “[a]ppellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record of sentencing.  [Citation.]”  (Ibid.) A trial court's failure to properly make a discretionary sentencing choice, on the other hand, does not result in an unauthorized sentence.   (Compare People v. Smith, supra, 24 Cal.4th at pp. 852-854, 102 Cal.Rptr.2d 731, 14 P.3d 942, with People v. Tillman (2000) 22 Cal.4th 300, 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109;  see People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

Ayers insists the trial court's failure to double the subordinate term imposed on count 3 represents a discretionary sentencing choice that, in light of the People's failure to object in the trial court, is not properly before us as part of his direct appeal.  (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Tillman, supra, 22 Cal.4th at p. 303, 92 Cal.Rptr.2d 741, 992 P.2d 1109.)   In support of his argument, Ayers emphasizes that the trial court has discretion to dismiss allegations the defendant has suffered a prior strike “in furtherance of justice” based on an individualized evaluation of the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions and the particulars of his or her background, character and prospects.  (Pen.Code, § 1385, subd. (a);  People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529-530, 53 Cal.Rptr.2d 789, 917 P.2d 628;  People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429.)   That power, moreover, may be exercised by the trial court to dismiss prior strike allegations as to some, but not all, counts.  (People v. Garcia (1999) 20 Cal.4th 490, 496, 85 Cal.Rptr.2d 280, 976 P.2d 831.)   Finally, Ayers contends that, although the trial court failed to set forth in the clerk's minutes any reasons for dismissing the prior strike allegations as to count 3, as required by Penal Code section 1385, subdivision (a), on a silent record this court must presume the trial court made the requisite factual findings.  (People v. Burnett (2004) 116 Cal.App.4th 257, 261, 9 Cal.Rptr.3d 885 [failure to impose sex offender fine pursuant to Pen.Code, § 290.3 is not an unauthorized sentence subject to correction on appeal absent an objection by the People in the trial court].)

Ayers's position would appear correct if the trial court had stated it was dismissing the prior strike allegation as to count 3 and then failed to set forth its reasons for doing so as required by Penal Code section 1385, subdivision (a).   But here the trial court neither exercised its discretion to dismiss the prior strike allegation nor sentenced Ayers in accordance with the mandate of the Three Strikes law.   The court was jurisdictionally obligated to do one or the other.  (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391, 75 Cal.Rptr.2d 244 [“The trial court had a duty to impose sentence in accord with the law.  [Citations.]  The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal”];  People v. Morales (2003) 106 Cal.App.4th 445, 454-455, 130 Cal.Rptr.2d 800 [“A failure to double subordinate terms when a prior violent or serious felony conviction allegation has been found to be true is a jurisdictional error which can be raised for the first time on appeal”].)   Accordingly, the sentence imposed on count 3 is “unauthorized.”

 As Ayers notes, the trial court has jurisdiction in a multiple count case to strike a prior serious felony conviction finding as to individual counts.   The trial court in this case appears not to have recognized the applicability of the Three Strikes law to count 3 and never had occasion to exercise its discretion to dismiss the prior strike allegation as to that count.   We therefore remand the cause to the trial court to exercise is discretion under Penal Code section 1385, subdivision (a), in the first instance as to count 3.

DISPOSITION

The judgment is reversed with respect to the sentence imposed on the attempted premeditated murder count (count 1) and the attempted robbery count (count 3), and the matter is remanded for resentencing on those counts in accordance with the views expressed in this opinion.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

PERLUSS, P.J.

We concur:  JOHNSON and ZELON, JJ.

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