PEOPLE v. KEELEN

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

The PEOPLE, Plaintiff and Respondent, v. Emile KEELEN, Defendant and Appellant.

No. B102454.

Decided: July 17, 1997

Michael B. McPartland, Petaluma, under assignment by the Court of Appeal, 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, Jaime L. Fuster, and William V. Ballough, Deputy Attorneys General, for Plaintiff and Respondent.

This case raises an issue of first impression under the “three strikes” law (Pen.Code § 667, subds. (b)-(i)).1  In calculating a sentence under section 667, subdivision (e)(2)(A)(i)-“three times the term otherwise provided as punishment”-is the trial court required to select the upper term for the offense as “the term” to be tripled, or may the court exercise its usual sentencing discretion and select either the upper, middle or lower term?   We conclude the trial court retains its discretion under section 1170, subdivision (b) to select the upper, middle or lower term as appropriate.   Because the trial court in this case mistakenly believed it had to select the upper term as the term to be tripled under section 667, subdivision (e)(2)(A)(i) and also misunderstood its discretion to dismiss one or more of defendant's “strikes” under section 1385, we remand the matter for resentencing.

FACTS AND PROCEEDINGS BELOW

A jury convicted defendant of attempted murder, spousal abuse and possession of a firearm by a felon and found in the commission of the attempted murder he personally used a firearm and inflicted great bodily injury on the victim.   The jury also found defendant previously had been convicted of two residential burglaries.

The trial court sentenced defendant as follows:  On the conviction for attempted murder, which the jury found not to be willful, deliberate and premeditated, the court sentenced defendant to a term of 27 years to life (upper term of 9 years (§ 664, subd. (a)) tripled under the “three strikes” law (§ 667, subd. (e)(2)(A)(i)) plus 4 years for the firearm enhancement (§ 12022.5, subd. (a)) and 5 years for the great bodily injury enhancement (§ 12022.7, subd (d))) for a total of 36 years to life.   On the spousal abuse conviction defendant was sentenced to the midterm of 3 years and the sentence stayed (§ 654).   On the conviction for possession of a firearm by a felon the court sentenced defendant to a consecutive term of 25 years to life under the “three strikes” law (§ 667, subd. (e)(2)(A)(ii)).   The court also imposed two consecutive five-year terms on the prior serious felony conviction enhancements (§ 667, subd. (a)).   Defendant received 253 days credit for time served.2

Defendant filed a timely notice of appeal raising seven alleged errors in his sentencing.

DISCUSSION

I.-IV.**

V. THE TRIAL COURT CORRECTLY LIMITED DEFENDANT'S CONDUCT CREDITS TO 15 PERCENT OF THE ACTUAL TIME HE SERVED IN COUNTY JAIL PRIOR TO CONVICTION.

 Section 2933.1 subdivision (a) provides, “Notwithstanding any other law, any person who is convicted of a [violent] felony offense listed in section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”  (Italics added.)   Between his arrest and sentencing, defendant spent 220 days in county jail.   The trial court gave defendant presentence credit for actual time served (220 days) plus 33 days of conduct credits (15 percent of 220) for a total of 253 days.

Defendant maintains the trial court erred by applying the 15 percent limitation on conduct credits for violent felons to the time defendant served in jail prior to being convicted of a violent felony.   He reasons, under the language of section 2933.1, subdivision (a), supra, the 15 percent limitation applies prospectively from the date a defendant is convicted of a violent felony.

Defendant's argument ignores subdivision (c) of section 2933.1.   Subdivision (c) provides in relevant part, “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in ․ a county jail ․ following arrest and prior to placement in the custody of the Department of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”  (Italics added.)   As the court pointed out in People v. Ramos (1996) 50 Cal.App.4th 810, 819, 58 Cal.Rptr.2d 24, “This provision plainly looks to the number of days an unsentenced defendant actually spends in local custody․”   Thus the Legislature expressed a clear intent to apply the 15 percent limitation on conduct credits to the time a defendant spends in jail prior to conviction and sentencing.3

VI. IN CALCULATING A THIRD STRIKE SENTENCE UNDER SECTION 667, SUBDIVISION (e)(2)(A)(i) THE TRIAL COURT IS NOT REQUIRED TO SELECT THE UPPER TERM FOR THE OFFENSE AS THE TERM TO BE TRIPLED.

The jury having found defendant previously had been convicted of two serious felonies (residential burglaries) the trial court was required to sentence defendant for the current offenses under section 667, subdivision (e)(2)(A).   This section provides in relevant part:

“If a defendant has two or more prior [serious or violent] felony convictions ․ the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:[¶] (i) Three times the term otherwise provided as punishment for each current felony conviction ․ [¶] (ii) Imprisonment in the state prison for 25 years. [¶](iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any [applicable] enhancement ․” (§ 667, subd. (e)(2)(A)(i), (ii), (iii).)

The parties agree the minimum term of the indeterminate life sentence for defendant's attempted murder conviction boiled down to a choice between option 1-three times “the term otherwise provided as punishment” for attempted murder-and option 2-25 years.4  Because the trial court erroneously believed it was required to use the upper term for attempted murder in determining whether option 1 or option 2 yielded the greatest minimum term the court did not make a sentencing choice between the upper, middle or lower term.   For the reasons explained below, we remand the matter to the trial court for it to make this sentencing choice and state the reasons therefor.

In the trial court the People contended the minimum term under section 667, subdivision (e)(2)(A) had to be calculated “as the greatest of either triple the high term of the crime or twenty-five years.”   Thus, the People argued, defendant had to be sentenced to 27 years to life on the attempted murder count.   Defendant argued the court had the discretion to calculate the minimum term using the middle or lower term.

The record of the first sentencing hearing shows the trial court was confused as to the sentence it intended to impose.   The court stated, “Based upon the defendant's two prior convictions, the defendant is eligible for a sentence of 25 years to life on count 1 which is attempted murder.”   The court then corrected itself and stated, “Actually [he] is eligible for 27 to life because it would be either the higher of 25 years or three times the high term which in fact would be 27 years to life.”   The sentence the court actually imposed, however, was 25 years to life.   The court subsequently vacated that sentence and conducted a new sentencing hearing two days later.

At the second sentencing hearing the court sentenced defendant to a term of 27 years to life.   The court stated, “[P]ursuant to Penal Code section 667(e)(2)(A)(i) ․ the minimum term is calculated as the greater of three times the term otherwise provided for the current conviction.   Since attempted murder ․ carries a term of five, seven and nine years, the indeterminate term will be three times nine which is 27 years to life.”   We conclude from the trial court's statements at both sentencing hearings the court believed it had no discretion and was required to impose three times the upper term for attempted murder as the minimum term of defendant's life sentence.

The Legislature did not define “the term otherwise provided as punishment” for purposes calculating option 1. As with most determinate sentences, the sentence for non-premeditated attempted murder has more than one “term.”   The defendant may be punished by an upper term of nine years, a middle term of seven years or a lower term of five years. (§ 664, subd. (a).)  Only the upper term of nine years, when tripled, yields a sentence greater than the 25 years provided by option 2. Does this mean in calculating the sentence under option 1 trial court must select the upper term?   Or, may the court exercise its usual sentencing discretion and select either the upper, middle or lower term?   No reported case has addressed this issue.5

 Construing section 667, subdivision (e)(2)(A)(i) according to the fair import of its language and in harmony with other provisions of the Penal Code, as we are bound to do under section 4, we conclude “the term otherwise provided as punishment,” as used in section 667, subdivision (e)(2)(A)(i), means the upper, middle or lower term as selected by the trial court in accordance with applicable sentencing rules.6

Section 1170, subdivision (b) provides:  “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”   We find nothing in the “three strikes” statute which specifically preempts section 1170, subdivision (b).   In contrast, the “three strikes” statute does specifically preempt other statutes either by name or by using the phrase “notwithstanding any other law․” 7 If the Legislature had intended the trial court to always use the upper term for the offense in calculating “the term” under option 1 it could easily have said so by specifically preempting section 1170, subdivision (b) or by simply inserting the word “upper” to make the phrase read “three times the upper term otherwise provided as punishment․”   Absent a clear expression of legislative intent, we are not inclined to interpret section 667, subdivision (e)(2)(A)(i) as abrogating one of the basic rules of determinate sentencing by requiring the trial court to select the upper term for an offense even if the court does not believe the upper term is justified under the circumstances.

For the reasons explained above, we hold the procedure for calculating the minimum term under option 1 is as follows:  The trial court selects the upper, middle or lower term in accordance with section 1170, subdivision (b) just as it would if there were no “three strikes” law.   The court then triples the selected term.   If the resulting term is greater than the terms under options 2 and 3, the court imposes the resulting term as the minimum term of the indeterminate life sentence.   If the resulting term is less than the terms under options 2 and 3 the court imposes whichever of these latter two options yields the greater minimum term.

 Here, the trial court's failure to exercise its discretion when it selected the upper term in calculating option 1 requires the matter be remanded for resentencing.   We cannot say how the court would have exercised its sentencing discretion had it been aware such discretion existed nor can we say selection of the middle term would have been an abuse of discretion as a matter of law.8

VII. THE SENTENCE IS REMANDED TO THE TRIAL COURT FOR IT TO EXERCISE ITS DISCRETION REGARDING DISMISSAL OF THE “STRIKE” ALLEGATIONS.

 While this appeal was pending our Supreme Court rendered its opinion in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 holding, for purposes of sentencing under the “three strikes” law, the trial court “may exercise the power to dismiss granted in section 1385, either on the court's own motion or on that of the prosecuting attorney, subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.”  (Id. at p. 504, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

The People argue, however, a remand for the exercise of such discretion would not be appropriate in this case because the record shows defendant did not request the trial court to dismiss any of the previous “strikes;” it must be presumed from the silent record the trial court did exercise its discretion and decided not to dismiss any of the previous “strikes;” the record shows the trial court would not exercise its discretion in defendant's favor;  and, if it did, dismissing any of the priors would be an abuse of its discretion.

We begin with the People's arguments based on lack of a motion to dismiss the “strikes” and the silent record.

A split of authority has developed over whether a sentence should be remanded under Romero where the defendant did not specifically request the trial court to strike a prior conviction under Penal Code section 1385 and/or the record is silent as to whether the trial court understood it had the discretion to do so.   Cases ordering remand include People v. Allen (1997) 53 Cal.App.4th 1127, 1132, 62 Cal.Rptr.2d 274 [remand ordered where defendant did not move to strike and record silent as to whether judge understood discretion];  People v. Stevens (1996) 48 Cal.App.4th 982, 984, 56 Cal.Rptr.2d 13 [remand ordered where defendant moved to strike prior but record “unclear” as to whether judge understood discretion];  People v. Sotomayor (1996) 47 Cal.App.4th 382, 390-391, 54 Cal.Rptr.2d 871 [remand ordered where defendant did not move to strike but record reflected judge misunderstood discretion].   Cases denying remand include People v. Davis (1996) 50 Cal.App.4th 168, 172-173, 57 Cal.Rptr.2d 659 [no remand where defendant did not move to strike and record silent as to whether judge understood discretion];  People v. Alvarez (1996) 49 Cal.App.4th 679, 694-696, 56 Cal.Rptr.2d 814 [same];  People v. Askey (1996) 49 Cal.App.4th 381, 388, 56 Cal.Rptr.2d 782 [no remand where defendant did not move to strike];  People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523, 56 Cal.Rptr.2d 749 [no remand where defendant did not move to strike and record silent as to whether judge understood discretion].

Although we previously denied a Romero remand on the grounds of a silent record and defendant's failure to request the trial court to strike his prior convictions (People v. Rocha (1996) 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212), we did so in one sentence in a footnote responding to a supplemental letter brief filed by appellant.  (Id. at p. 1072, fn. 7, 56 Cal.Rptr.2d 212.) We cited no authority for our holding and gave the matter only cursory attention.   Having further considered the matter, we conclude the defendant's failure to move for dismissal of the priors and a silent record on the trial court's exercise of its discretion are not sufficient grounds to deny a Romero remand.

We are not persuaded a defendant waives or forfeits the right to have the trial court exercise its discretion under section 1385 by not specifically requesting the trial court to do so, especially in a pre-Romero trial.   Neither the statute on its face nor as interpreted by Romero provides for a motion by the defendant to dismiss a “strike.”   Instead, the statute unambiguously provides “the judge ” or “the prosecuting attorney ” may move for dismissal.   It is unjust to penalize the defendant for not making a motion the defendant had no standing to make.  (People v. Allen, supra, 53 Cal.App.4th at p. 1132, 62 Cal.Rptr.2d 274;  People v. Sotomayor, supra, 47 Cal.App.4th at pp. 390-391, 54 Cal.Rptr.2d 871.)   Furthermore, prior to Romero every division in the Second District and nearly every other appellate court had held the trial courts did not have discretion to dismiss a “strike” under section 1385.   Therefore the People cannot legitimately argue the defendant waived a “known right” because the right to an exercise of discretion under section 1385, prior to Romero, was un known.   Nor can it be argued in good faith the defendant forfeited a right which the appellate courts had unanimously held did not exist.

The “silent record” argument rests on the presumption the trial court properly applied the law and exercised its discretion.   Again, it is disingenuous to argue the trial court should be presumed to have exercised its discretion whether to dismiss a “strike” in the face of at least two dozen published appellate opinions, including several from this division, telling the trial court it had no such discretion.  (See People v. Allen, supra, 53 Cal.App.4th at pp. 1134-1135, 62 Cal.Rptr.2d 274 and the cases cited therein.)   If we are to presume the trial court followed the law, we must presume it did not exercise its discretion because that was the state of the law before Romero.

 The People next argue even if defendant did not waive his right to an exercise of trial court discretion, a remand for the exercise of such discretion would not be appropriate in this case because the record shows the trial court would not exercise its discretion in defendant's favor and, if it did, it would be abusing its discretion.  (See Romero, supra, 13 Cal.4th at p. 530 & fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   We disagree.

Contrary to the claim by the People, the record does not “clearly indicate” the trial court would not, in any event, have exercised its discretion to strike the prior convictions.  (People v. Romero, supra, 13 Cal.4th at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   The sentences the trial court imposed on the attempted murder and possession offenses are not indicators of how the court would have exercised its discretion to strike one or both prior convictions.   As to the attempted murder sentence, the trial court erroneously believed it was required to select the upper term and as to the possession sentence the trial court in fact had no discretion.  (See discussion in Part VI, above.)   If there is any indicator in the trial court's sentencing, the fact the court sentenced defendant to the midterm on the spousal abuse conviction suggests the court was not bent on imposing the absolute maximum sentence allowed.

Nor can we say dismissal of one or both of defendant's prior “strikes” (residential burglaries) would be an abuse of discretion as a matter of law.  (Cf. People v. Alvarez (1997) 14 Cal.4th 968, 981, 60 Cal.Rptr.2d 93, 928 P.2d 1171 [no abuse of discretion to reduce drug possession charge from felony to misdemeanor despite four prior residential burglary convictions].)  Even with one “strike” defendant could still be sentenced to 43 years in prison.   And, even if both “strikes” were dismissed he could be sentenced to 34 years.

DISPOSITION

The judgment is affirmed as to the convictions and the matter is remanded to the trial court for resentencing consistent with the views expressed herein.   The defendant shall be present at the hearing on resentencing.

I agree with the majority except for some of its part VII comments.

Since, as the majority correctly explain in part VI, a remand is required-quite apart from Romero-the majority's lengthy Romero discussion is extraneous.   I do not join in it-nor in its characterization of People v. Rocha (1996) 48 Cal.App.4th 1060, 56 Cal.Rptr.2d 212.

FOOTNOTES

1.   All statutory references are to the Penal Code.

2.   The parties agree the abstract of judgment should be corrected to show the 253 days of presentence credit consists of 220 days of actual time and 33 days of conduct credit.   We discuss below defendant's claim the conduct credits were improperly calculated.  (See Part V, below.)

FOOTNOTE.   See footnote *, ante.

3.   The abstract of judgment should be corrected to show 220 days of actual time and 33 days of conduct credit.

4.   Defendant does not challenge the 25 years to life sentence for the firearm possession conviction.

5.   In People v. Ayon (1996) 46 Cal.App.4th 385, 393, fn. 6, 53 Cal.Rptr.2d 853, the Court of Appeal assumed without discussion a trial court has discretion under section 667, subdivision (e)(2)(A)(i) to select the lower, middle or upper term.   We also note that in doubling the term for a defendant with one previous serious or violent felony under section 667, subdivision (e)(1) the trial and appellate courts have always assumed the term to be doubled can be the lower, middle or upper term.  (See, e.g., People v. Ramirez (1995) 33 Cal.App.4th 559, 574, 39 Cal.Rptr.2d 374.)   Although subdivisions (e)(1) and (e)(2)(A)(i) use similar language, the possibility of different interpretations arises from the requirement that in sentencing a defendant with two or more previous serious or violent felonies the trial court must select “the greater of” the tripled term, 25 years or the term calculated under section 1170 plus enhancements.

6.   We asked the parties to submit supplemental letter briefs on this issue.   Both the People and defendant agree the trial court has discretion to define the minimum term of the indeterminate sentence as the lower, middle or upper term for the offense.   The People, however, contend the trial court exercised this discretion.   We have concluded to the contrary.  (See discussion, infra, at pp. ---- - ----.)

7.   For example, section 667, subdivision (c)(4) prohibits commitment under sections 3050, et. seq.  Section 667, subdivision (f)(1) provides “Notwithstanding any other law, subdivisions (b) to (I), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d).”

8.   If the trial court, under option 1, selected the middle term of 21 years (7 years tripled) then it would have to select option 2, 25 years, as the minimum term of the indeterminate life sentence.   This two year reduction in defendant's sentence would not be an abuse of discretion per se.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.

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