PEOPLE v. TAYLOR

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

The PEOPLE, Plaintiff and Respondent, v. Timothy TAYLOR, Defendant and Appellant.

No. B097693.

Decided: June 11, 1997

Carlo Andreani, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William Bilderback, Deputy Attorney General, Juliet H. Swoboda, Deputy Attorney General, for Plaintiff and Respondent.

Timothy Taylor was convicted of residential robbery and burglary of an aged person and sentenced to 25 years to life under the “three strikes” law.   On appeal he claims the trial court impaired his ability to exercise peremptory challenges in violation of his rights under the Sixth and Fourteenth Amendments.   He also requests a remand for an informed exercise of the trial court's discretion to strike his prior convictions.   We affirm Taylor's conviction but vacate the sentence and remand the matter for resentencing.

FACTS AND PROCEEDINGS BELOW

We state the facts in the light most favorable to the judgment (People v. Williams (1941) 47 Cal.App.2d 467, 468, 118 P.2d 369).   Taylor committed residential burglary and robbery of Theodore Smith, 89 years of age.   Appellant stole cash ($30-40) while holding his hand around Smith's neck.   He also stole a partial roll of 32 cent postage stamps.   After Taylor left Smith's house, Smith called the police.

When the police arrived at Smith's house they found the glass panel on the back door was broken and blood was scattered in that area as well as the kitchen, hallway, and front porch.   Smith also had some of the blood on his sweater.

While the police were investigating the crime scene at Smith's house, a few blocks away paramedics were assisting a person in an unrelated matter.   Taylor ran up to the paramedics and told them he cut himself while working on his car.   Taylor was transported to a hospital for treatment.   Later, the police took Smith to the hospital to see if he could make an identification.   Smith positively identified Taylor as the person who had robbed him.   The police seized Taylor's clothes and blood samples were taken.   A criminalist testified 10 percent of the population have the same blood type as Taylor and the blood found on Smith's sweater 1 .

The district attorney filed a two count information.   Taylor was charged in count I with first degree residential robbery (Pen.Code § 211), a serious felony (Pen.Code § 1192.7 subd. (c)(19)).   He was charged in count II with first degree residential burglary (Pen.Code § 459).   It was further alleged as to counts I and II pursuant to Penal Code sections 1170.12, subdivision (a) through (d), and 667, subdivisions (b) through (i), that Taylor had suffered two robbery convictions in 1984, a conviction for attempted robbery in 1985 and a 1987 conviction for robbery.   The information also alleged, pursuant to Penal Code section 667, subdivision (a)(1), Taylor had suffered two robbery convictions in 1984, one attempted robbery conviction in 1985 and one robbery conviction in 1987.   It was further alleged, pursuant to Penal Code section 667.5, subdivision (b), as to counts I and II appellant had suffered a conviction for vandalism causing damage of over $1000 for which he served a prison term and following which he, within five years, committed another offense resulting in a felony conviction.   Finally, the information alleged as to counts I and II appellant violated Penal Code section 667.9, subdivision (a) in that the victim was 89 years old.

Taylor pleaded not guilty and denied the special allegations.

Prior to trial, Taylor made numerous motions including motions to strike his prior convictions in the interest of justice and to declare his potential punishment under the “three strikes” law cruel and unusual punishment.   His motion for bifurcation of trial issues was granted.

During trial, as we discuss in more detail below, a defense Wheeler2 motion was denied and a defense motion for two additional peremptories was also denied.

Trial was by jury.   The jury found Taylor guilty as charged on count I and found the robbery to be of the first degree.   The jury further found the allegation Taylor committed the offense against a person 65 years of age or older to be true.   On count II, the jury found Taylor guilty and found the burglary to be of the first degree.   The jury found the allegation Taylor committed the offense against a person 65 years of age or older to be not true.

Before trial commenced on the allegations of prior convictions, Taylor agreed to admit to two of the convictions for purposes of third strike sentencing in return for the district attorney's agreement not to pursue the enhancements.

The court denied probation and denied the defense's motion for a new trial.   Taylor was sentenced to state prison for a term of 25 years to life pursuant to Penal Code section 1170.12, subdivision (c)(2)(A). 3  The court imposed a restitution fine of $200 and 336 days of presentence custody credit, consisting of 224 days in custody and 112 days conduct credit.   The sentence as to count II was stayed.

DISCUSSION

I. THE TRIAL JUDGE ERRED IN NOT ALLOWING THE DEFENSE TO EXERCISE ITS PEREMPTORY CHALLENGES BECAUSE ADEQUATE GROUNDS FOR DISMISSAL EXISTED;  HOWEVER, THE TRIAL JUDGE DID OFFER A CURE WHICH THE DEFENSE ACCEPTED, THUS WAIVING THE ERROR. A. Defense Counsel Provided Adequate Race-Neutral Explanations to Exclude Venire Persons in His Exercise of Peremptory Challenges.

After the defense exercised its eighth 4 peremptory challenge against Juror BS (female) 5 , the trial judge requested both counsel to approach the bench for a sidebar conference, outside the hearing of the jury 6 .  At this time, the trial judge told them further exclusion of jurors will be made at sidebar and he must be notified as to which juror will be excluded prior to exclusion 7 .

After further voir dire of prospective jurors, the defense exercised a ninth peremptory against Juror IM (male).   Then the prosecutor excluded Juror RR (male) with a third peremptory, and the defense made a Wheeler motion based on the second exclusion of a black male.   The prosecutor voluntarily articulated reasons for the peremptory challenge;  the trial court ruled they were legitimate and denied the Wheeler motion.

1. The trial court committed error when it disallowed appellant's use of a peremptory challenge against Juror SS.

 The defense exercised its next three peremptory challenges against Juror MD (female), Juror VG (male), Juror PC (female, Asian).   The defense then attempted to exercise a peremptory against Juror JM (male) which was initially denied, but later granted.   The defense exercised its peremptory to excuse Juror SG (female, Caucasian) and then excused Juror SM (female, African American), a law student whose husband had been a police officer for eight years.   The defense's attempt to excuse Juror SS (male, Latino) with its next peremptory was denied, as follows:

“MR. COURTNEY:  Your Honor, we'd ask the court to thank and excuse juror no. 10, [Juror SS]. He's an older gentleman, like the victim in this case.   He's retired.   He'd been living at home alone, just like the victim in this case.   And I believe that he's not worth running the risk of keeping on my client's jury.   So we'd ask you to excuse him.

“THE COURT:  Now, again, I don't see any articulable reason to excuse [Juror SS]. Again, counselor like to excuse- and I want the record to show this-almost on any whim, any juror.   And that is denied.

“MR. KORN:  I just want to show for the record, also, that I have marked at least six Hispanic jurors that have been kicked off of the jury by the defense, and they are a protected class under Wheeler.   And I do believe, without anything more articulable regarding [Juror SS], that it would be purposefully excluding jurors based on their nationality.

“THE COURT:  Yes. It's denied ․”

 The use of peremptory challenges to eliminate prospective jurors because of their race is prohibited by the federal Constitution (Powers v. Ohio, (1991) 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411;  Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) and by the California Constitution (People v. Wheeler, supra ).   In Wheeler, the California Supreme Court held the California Constitution prohibits litigants from using their statutory right to peremptory challenges to exclude prospective jurors on the basis of group bias:  “We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community․”  (Wheeler, supra, 22 Cal.3d. at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748.)   The court defined group bias as a presumption certain jurors are biased merely because they are members of an identifiable group distinguished by racial, religious, ethnic, or similar grounds.  (Id. at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)

 A party claiming such discrimination has the initial burden of establishing a prima facie case.  (People v. Arias (1996) 13 Cal.4th 92, 135, 51 Cal.Rptr.2d 770, 913 P.2d 980.) To establish a prima facie case, a party must make as complete a record as the circumstances permit, must establish the challenged prospective jurors are members of a cognizable group, and must show a “strong likelihood” they were challenged because of their group association.  (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)

 Once a prima facie case is established, then the burden shifts to the other party to come forward with a race-neutral explanation related to the particular case to be tried.  (Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.) To sustain this burden, the party must satisfy the court the challenges were reasonably relevant to the case at bar on grounds other than group discrimination.   The trial court must then determine whether it finds the reason offered to be credible or merely a pretext to disguise group bias.   If the burden of justification is not sustained, the judge must dismiss the jurors selected, quash any remaining venire, and summon a different venire for a new jury selection.   Furthermore, denial of the party's motion in the absence of a sufficient rebuttal showing is reversible error per se.  (Ibid.)

Here, the trial judge did not inquire as to the basis of the defense's challenge, but merely noted he was excusing potential jurors on “any whim.”   A peremptory challenge is “an objection to a juror for which no reason need be given, but upon which the court must exclude him.” (Code Civ.Proc., § 226, subd. (b).)  The Wheeler court explained peremptory challenges are permissible so long as they are based on specific bias, which the court defined as a bias relating to the particular case on trial.

“For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle.   In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority.   Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge:  either party may feel a mistrust of a juror's objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.’ ”  (Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)

In Batson v. Kentucky, supra, the United States Supreme Court permitted peremptory challenges so long as they are justified by a “neutral explanation related to the particular case to be tried.”  (476 U.S. at p. 98, 106 S.Ct. at 1723.)   The Court emphasized “that the [party's] explanation need not rise to the level justifying exercise of a challenge for cause.”  (Id. at p. 97, 106 S.Ct. at 1723.)   In this case, the defense counsel offered a race-neutral explanation to exclude juror 10 (e.g., the similarity of the juror to the victim in several respects);  however, the challenge was denied.

In People v. King (1987) 195 Cal.App.3d 923, 241 Cal.Rptr. 189, the prosecutor exercised peremptory challenges to exclude several, prospective jurors, including two Black men Prescott and Rand, in a rape case.   Defendant raised a Wheeler motion contending systematic exclusion of black jurors on the basis of group bias.   The motion was denied.   Based on the information given during voir dire, the prosecutor gave reasons for his decision to exclude these jurors.   He told the trial court that he inferred that Prescott, an older man who likely had traditional values, might consider the victim in this case-living in circumstances that Prescott might feel was inappropriate for a young woman-was “asking” to be raped.  (Id. at p. 928, 241 Cal.Rptr. 189.)   He also explained he inferred from the fact Rand's wife was the principal breadwinner, she was the dominant force in their home and this might make Rand less sympathetic to the female crime victim in the case.  (Id. at p. 929, 241 Cal.Rptr. 189.)   The Court of Appeal acknowledged the prosecutor's inferences were “somewhat speculative.”   It also noted, however, the California Supreme court has affirmed “ ‘a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality, [ranging] from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.’ ”  (People v. King, supra, 195 Cal.App.3d. at p. 933, 241 Cal.Rptr. 189, quoting Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.)   In applying the Wheeler standard, the trial court in King noted the prosecutor “ ‘has stated his reasons.   I can't second guess his evaluation of those people in the sense that in his opinion he feels that those people would not give his client a fair trial, he's justified in exercising a peremptory challenge.’ ”  (People v. King, supra, 195 Cal.App.3d at p. 929, 241 Cal.Rptr. 189.)   The Court of Appeal affirmed the trial court's allowance of exclusion in exercising a peremptory challenge.

 In this case, the trial court not only second guessed the defense counsel's reasoning, but also applied a heightened standard unjustified by Wheeler or its progeny.   To justify exclusions under Wheeler, defense counsel must satisfy the court he or she exercised peremptory challenges on grounds which were “reasonably relevant to the particular case on trial or its parties or witnesses-i.e., for reason of specific bias.”  (Wheeler, supra, 22 Cal.3d at pp. 281-282, 148 Cal.Rptr. 890, 583 P.2d 748, italics added.)   In the present case, we believe defense counsel's reasons were reasonably relevant.   Like the victim in this case, Juror SS was an older gentleman, retired, and living alone at home, who may reasonably be biased towards the victim.   Thus, the trial court erred when it disallowed defense counsel's use of a peremptory challenge against Juror SS.

2. The trial court committed error when it disallowed appellant's use of a peremptory challenge against Juror HT.

 The defense next attempted to excuse Juror HT (male, Asian), but the court rejected the challenge:

“THE COURT:  [Juror HT]? Okay. Yes. And what is the reason, counselor?

“MR. COURTNEY:  His brother is a sheriff's deputy.   He's young, single.   He's an engineer.   It's been my experience that those people are arbitrary and abrupt in their discussions in the jury room and don't listen to the evidence well.   For those reasons-

“THE COURT:  You've been in the jury room and heard engineers do this, counselor?

“MR. COURTNEY:  No, sir.   I've only spoken to them afterwards, when they've indicated to me why they've made their decisions, judge.

“MR. KORN:  Does he have a brother who's a deputy sheriff?

“MR. COURTNEY:  That's what he told us.

“THE COURT:  I don't see any articulable reason to exclude [Juror HT]. That is about the fifth Oriental that's been excluded.   Again, that's a pattern under Wheeler, and it's a pattern that you've utilized, counselor.   I'm denying the exclusion of [Juror HT].”

As a race-neutral explanation, the defense counsel offered his experience, based on post-trial interviews, engineers are “arbitrary and abrupt in their discussions in the jury room.”   This explanation is more specific than the one offered in Lopez, where appellant's counsel informed the court he never allowed computer programmers to remain on a jury in criminal trials as a matter of “personal bias.”  (People v. Lopez (1991) 5 Cal.Rptr.2d 775, 3 Cal.App.4th Supp. 11, 17.)   The Lopez court found that justification insufficient to demonstrate a race-neutral reason for defense counsel's peremptory challenges.   Furthermore, the present case is distinguishable from Lopez because there is a second reason for excluding Juror HT. He was related to a law enforcement officer.   We doubt any defense counsel would accept a juror of any race who was the brother of a law enforcement officer.

3. The trial court committed error in denying appellant's use of a peremptory challenge against Juror JM1.

 The court also rejected the reasons offered by defense counsel against Juror JM1 (male, Caucasian) who was a retired engineer, resided in an area defense counsel knew to be a “very conservative neighborhood,” and had a son-in-law who was a police officer.   Similar to the justifications applied to Juror HT, the trial court committed error in determining that defense counsel had not provided adequate race-neutral basis for challenging Juror JM1.

4. The trial court committed no error in denying appellant's use of peremptory challenges against Juror JM2 and Juror MR.

 As to Juror JM2 (male, Latino) and Juror MR (female, Latina), the trial court denied the defense's peremptory challenges by noting both were Latino named jurors.   For Juror JM2, the defense's challenge was based upon his postal office job and geographical residential area “ known to be conservative.”   As to Juror MR, the reasons for dismissal rested on her single mother status and refusal to make eye contact with defendant, appearing to be “very timid and frightened.”   A jury panelist's employment history may be a race-neutral reason for challenge if employment background is somehow related to the facts of the case.  (People v. Stiff (1994), 206 A.D.2d 235, 620 N.Y.S.2d 87, 92.)   The fact Juror JM2 is employed by the post office does not appear to be related to the facts of this case, thus the trial court did not commit error in refusing to allow that peremptory.   Similarly, the fact Juror MR is a single mother of five children does not bear any relation to the case and suggests racial discrimination 8 , thus the court properly denied the challenge as to Juror MR.

B. The Court Did Not Erroneously Create An Entire New Cognizable Group.

 While the United States Supreme Court has not produced a definitive definition of cognizable groups, the Court has stated in the context of a challenge to the composition of a grand jury such a group “is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or applied.”  (Castaneda v. Partida (1977) 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498.)   In Stiff, supra, 206 A.D.2d at p. 240, 620 N.Y.S.2d 87, the defendant contended “nonblacks” are not such a cognizable group.   The court did not agree with the defendant, concluding there is no rule a prima facie case of purposeful discrimination cannot be based on the pattern of strikes alone where the defendant had exercised five peremptory challenges to exclude all but one of the remaining nonblack jurors from the panel of 16.  (Ibid.) Similarly, in this case, the prosecution noted for the record:

“MR. KORN:  ‘․ throughout the course of this voir dire process, counsel has exercised his peremptories at everybody but African-Americans in the case;  and in fact, SM is not an African American ․ Out of the 14 or 15 peremptory challenges that were exercised, one of them were exercised against African-Americans.  [ ․ ] It is my feeling, as I've watched the course of this voir dire, that the defense has sought to exclude everybody and stack the jury with as many African-Americans as he can.   I just want that to be reflected in the record.

“MR. COURTNEY:  Yes, judge.   I hope the record will reflect that I'm doing the best job that I can to pick the best jury for my client.

“THE COURT:  You certainly are.   I must agree with you.

“MR. COURTNEY:  As to the District Attorney's objections to my choosing the jury, I have done the best I could to pick a good jury for my client.   However, I've picked these people in a color-blind manner.   If I've kicked Hispanics, I've also kicked whites, but I've endeavored to kick as many undesirable jurors as I could see.

“THE COURT:  You've kicked a lot of people in the categories of Latinos, Orientals, and Whites, and many for no apparent reason.   That's what I want the record to show.”

The trial court did not erroneously create a new cognizable group (i.e., nonblacks), but rather erred in several instances by not allowing the defense to exercise its peremptory challenges since in those instances the defense counsel articulated adequate grounds of dismissal not based on race.

C. Appellant Waived Any Rights He May Have Had to a New Venire By Accepting the Court's Offer of Additional Peremptory Challenges He Could Use to Strike Jurors He Initially Had Not Been Allowed to Challenge.

 The prosecution reminded the court it was faced with two options under People v. Smith (1993) 21 Cal.App.4th 342, 345, 25 Cal.Rptr.2d 850:  impanel a new jury or dismiss the jurors despite the court's finding the defendant sought to strike them on racial grounds.9  The prosecutor suggested the defense be allowed to use five peremptories in addition to the fifteen already granted.   The defense counsel was given the option to reconsider and utilize the five peremptories.   The defense counsel proceeded to exercise the five additional peremptory challenges by excusing Juror SS, Juror HT, Juror JM1, Juror MW, and Juror MR, the very jurors he had sought unsuccessfully to strike earlier in the jury selection process.

By agreeing to the trial court's alternative remedy of utilizing five additional peremptories, the defense waived the right to obtain dismissal of the venire.   A comparable situation occurred in People v. Williams, supra, 26 Cal.App.4th Supp. 1, 31 Cal.Rptr.2d 769, where the People were the complaining party and waived the right to obtain dismissal of the venire by agreeing to the trial court's alternative remedy of retaining the challenged juror instead of dismissing the entire venire.   Here, as in Williams, the trial court's procedure of conducting preliminary peremptory challenges at the sidebar avoided potential bias or prejudice on the part of the challenged juror whose initial challenge proved unsuccessful.   Unlike the challenged juror in People v. Smith, supra, who was improperly excused and then reseated, Juror SS, Juror HT, Juror JM1, Juror MW, and Juror MR were seated without knowing they had been challenged and then excused.   Furthermore, the confidential discussions prevented the rest of the jurors from hearing the trial court's accusation the defense counsel was seeking to stack the jury with African Americans which also would have been inherently prejudicial to appellant.

In People v. Lopez, supra, the trial court on its own motion held a Wheeler hearing and determined defense counsel was using peremptory challenges to exclude Chinese persons from the jury.  (5 Cal.Rptr.2d 775, 3 Cal.App.4th Supp. at p. 16.)   The trial court denied defense counsel's challenges to the third Chinese juror, refused to dismiss the jury panel and quash the remaining venire, and reseated the improperly challenged juror.   (Ibid.) The Appellate Department of the Superior Court of San Francisco concluded the trial court was not authorized to employ an alternative remedy not mandated by Wheeler.   However, the holding in Lopez is not binding on this court.

Importantly, Lopez is distinguishable on the ground the prosecutor in that case neither approved of the court's alternative remedy nor waived the People's right to a random draw from an entire venire.   Also the defendant has not established the possibility of bias or prejudice in this case as a result of the trial court's alternative remedy.   In light of the fact the defense ultimately was allowed to freely exercise its peremptory challenges, we find no reversible error.

In a Florida case, Palmer v. State (Fla.App.1991) 572 So.2d 1012, 1013, it was found the defendant waived the right to complain on appeal where the court determined the State had improperly used peremptory challenges, offered defendant the remedy of dismissing the panel and starting over, and defendant declined.   In another Florida case, the defendant claimed reversible error in not applying the remedy as prescribed for seating challenged jurors, despite the fact the defendant had not been prejudiced.  (Jefferson v. State (Fla.1991) 584 So.2d 123, 125.)   The Jefferson court held the trial court's remedy in the case was not opposed by the State and did not cause prejudice to the defendant, therefore, the remedy did not conflict with precedent.   (Ibid.) By analogy, the same reasoning may be applied to this case where it would be reversible error to force the defendant to accept the jurors in lieu of striking the panel and beginning voir dire again, yet these rights may be waived.   Even if the trial court lacks the discretion to seat the unlawfully challenged jurors, such error is harmless absent a showing of prejudice.   (Ibid.) Thus, when the trial judge offered an alternative remedy and the defense accepted, this constituted a waiver on the part of the defense to striking the jury panel.

II. THE SENTENCE IS VACATED AND THE MATTER REMANDED TO THE TRIAL COURT FOR IT TO EXERCISE ITS DISCRETION REGARDING DISMISSAL OF THE “STRIKE” ALLEGATIONS AND, IF NECESSARY, FOR THE PEOPLE TO PROVE THE PRIOR CONVICTIONS NOT PREVIOUSLY ADMITTED BY DEFENDANT.

 While this appeal was pending our Supreme Court rendered its opinion in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 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.”

It is apparent from the record in the present case the trial court did not exercise its discretion under section 1385 to dismiss or retain any of the allegations of prior serious felony convictions in the interests of justice.   In denying defendant's pretrial motion to dismiss the prior convictions the trial court started to explain its reasons then stopped in midsentence and said, “[T]he court just denies the motion.”   Contrary to the assertion by the People, the fact the trial court refused to dismiss the priors on the ground they would result in cruel and unusual punishment does not show the court exercised its discretion under section 1385 nor does it show how the court would have exercised its discretion.

The People next argue a remand for the exercise of such discretion would not be appropriate in this case because the record shows striking any of the prior conviction allegations would be an abuse of discretion.  (Romero, supra, 13 Cal.4th at p. 530 & fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

We rejected this same argument in People v. Robles (1996) 51 Cal.App.4th 627, 631, 59 Cal.Rptr.2d 400, reasoning that “because the trial court made it plain that it had no discretion to dismiss a serious prior or otherwise exercise sentence discretion, defense counsel had no reason to contest probation report assertions, offer mitigating evidence, have appellants testify, or even argue for a mitigated sentence.   Therefore, we believe it inappropriate to review a record which may have been thus skewed and then attempt to predict ‘abuse of discretion.’ ”  (Italics added.)

 Finally, the People contend defendant is estopped from complaining he is entitled to a remand under Romero because his sentence was the result of a bargain with the prosecutor.   We disagree.

The information alleged defendant previously had been convicted of four robberies.   The trial court denied defendant's pretrial motion to strike these prior felonies under section 1385.   Following his conviction for the current offenses, defendant agreed to admit two of the prior convictions for purposes of third strike sentencing in return for the prosecution's agreement “not [to] pursue those other priors.”   The prosecutor explained to defendant the benefit of this agreement was that he would be sentenced to a term of 26 years to life instead of 47 years to life.10  The prosecutor also stated for the record:  “The People have agreed to this disposition for the 25 years to life because I believe that the 47 years to life, which [defendant] may be sentenced to, would not be necessary and would be excessive under the circumstances.   Twenty-five to life is a sufficient sentence.”   What the prosecutor was saying was that although he would not agree to dismiss all or three of defendant's four priors in the interest of justice for purposes of sentencing under the “three strikes” law (§ 667, subd. (f)(2) he would agree to dismiss all four priors in the interest of justice for purposes of the enhancement provisions of section 667, subdivision (a) and 667.5, subdivision (b).)

Relying on cases involving plea bargains, including our decision in People v. Cepeda (1996) 49 Cal.App.4th 1235, 1239, 57 Cal.Rptr.2d 246, the People argue there should be no remand under Romero because defendant obtained the benefit of his bargain with the prosecutor and therefore is estopped from complaining about his sentence.

In Cepeda, the defendant entered a plea of no contest to the current offense of possessing cocaine and admitted one prior “strike” for purposes of the “three strikes” law.   In return, the prosecution dismissed defendant's other two “strikes.”  (49 Cal.App.4th at p. 1237, 57 Cal.Rptr.2d 246.)   As we explained, Cepeda obtained a considerable advantage by this plea bargain because he was treated as a second strike offender, instead of a third strike offender since two of his three “strikes” were dismissed upon a motion by the People.   As a result, Cepeda was sentenced to a doubled three-year term instead of the 25 years to life term he would have received if found to be a third strike offender.  (Id. at p. 1239, 57 Cal.Rptr.2d 246.)

The present case is distinguishable from Cepeda.   If Taylor had bargained the prosecutor down from four “strikes” to one in return for a plea of guilty and/or an admission of the one “strike,” the rationale of Cepeda might well estop him from seeking a Romero remand as to the one remaining “strike.”   Or, if the prosecutor had agreed to dismiss three of the four “strikes” in return for Taylor's agreement not to appeal the issue of the trial court's discretion to dismiss the remaining “strike,” Taylor might well be held to have waived his right to seek a Romero remand.   Here, however, Taylor's bargain with the prosecutor resulted in Taylor receiving the maximum sentence under the “Three Strikes” law-25 years to life.   We recognize by making this bargain Taylor avoided the possibility of an additional 21 years in enhancements.   Therefore, if the trial court should exercise its discretion to strike all or three of Taylor's four prior convictions for purposes of sentencing under the “Three Strikes” law the prosecution should be allowed to proceed on the enhancements.

Accordingly, we shall vacate the sentence and remand the matter to the trial court so it may exercise its discretion consistent with the views expressed in Romero and resentence the defendant.   Defendant must be present when a new sentence hearing is conducted.   If the trial court decides not to dismiss any of the allegations of defendant's prior convictions, then it shall reimpose the sentence originally ordered.   If the trial court decides to dismiss all or three of the allegations of defendant's four prior convictions for purposes of sentencing under the “three strikes” law then it shall permit the People to prove, for purposes of enhancement, the truth of the prior convictions not previously admitted by defendant and then resentence the defendant as provided by law.

DISPOSITION

The judgment of conviction is affirmed, the sentence is vacated and the matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

I dissent from that part of the majority opinion which remands the matter to the trial court for exercise of its discretion to strike one or more of the priors in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   The People contend the defendant is estopped from complaining he is entitled to a remand under Romero because his sentence was the result of a bargain with the prosecutor.   Unlike the majority, I find the People's position persuasive and I would affirm the judgment in its entirety without remand.

As pointed out in the majority opinion, the defendant was accused of having been convicted of four robberies.   Following his conviction for the current offenses, defendant agreed to admit two of the prior convictions for purposes of third strike sentencing in return for the prosecution's agreement “not [to] pursue those other priors.”   As further pointed out in the majority opinion, the prosecutor explained to defendant the benefit of this agreement was that he would be sentenced to a term of 26 years to life instead of 47 years to life.

In People v. Cepeda (1996) 49 Cal.App.4th 1235, 1239, 57 Cal.Rptr.2d 246 this court unanimously stated:  “People v. Nguyen (1993) 13 Cal.App.4th 114 [16 Cal.Rptr.2d 490] explained:  ‘Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction.   (People v. Jones [ (1989) ] 210 Cal.App.3d 124, 132-136 [258 Cal.Rptr. 294] [defendant estopped from arguing improper dual imposition of enhancement];  see also People v. Beebe (1989) 216 Cal.App.3d 927, 932-933, 265 Cal.Rptr. 242 ․ [defendant was estopped from withdrawing from plea bargain where “straight” felony would be reduced to misdemeanor];  People v. Olson [ (1989) ] 216 Cal.App.3d 601, 603 [264 Cal.Rptr. 817] [court declines to redress dual-use-of-facts error].)  The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to “trifle with the courts” by attempting to better the bargain through the appellate process.  (People v. Beebe, supra, 216 Cal.App.3d at p. 932, 265 Cal.Rptr. 242.)’ ”

FOOTNOTES

1.   Lawrence Blanton, a criminalist assigned to the Los Angeles Police Department, Scientific Investigation Division, provided expert testimony in his analysis of the blood stains from Mr. Smith's sweater and blood taken from Taylor.   He was able to make sufficient comparisons to determine both were A/B/O Type A, ES-D Type 1 and a PGM Subtype 1+ and only 10 percent of the people in the City of Los Angeles are of this blood type.

2.    People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

3.   All future statutory references are to the Penal Code unless otherwise specified.

4.   The defense had previously excused:  (1) Juror RS (male);  (2) Juror WT (female);  (3) Juror BC (male, Latino);  (4) Juror SE (female, Latina);  (5) Juror AC (male, Asian);  (6) Juror RP (male);  (7) Juror WC (male, Asian).

5.   Juror's gender and race provided, if possible.

6.   The following colloquy ensued:“THE COURT:  It's my understanding that Wheeler works both ways.   You've [Mr. Courtney, defense] excused--“MR KORN [prosecutor]:  Three Hispanics, I know, for sure.“THE COURT:  You excused [Juror BS] There were Anglos.  Wheeler works both ways, counselor.'MR COURTNEY[defense counsel]:  I agree.“THE COURT:  What was the basis for your exclusion of the jurors--in fact, probably for all the jurors that you've excused?   I don't know if there was, other than one, possibly a basis of it.   So I just wanted to warn you, the District Attorney is obviously-“MR. COURTNEY:  Thank you.“THE COURT:  I wanted to warn you about that.   So any peremptories will be made to me before the juror is excused, if this is a policy you're proceeding on.“MR. COURTNEY:  Policy regarding what?“THE COURT:  In excluding jurors.“MR. COURTNEY:  No, I'm not.   I'd indicate to the court that I don't even know the racial origin or ethnic group of any of the people I've dismissed.“THE COURT:  Oh, you can visually look at them can't you?“MR. COURTNEY:  I'm sure, but that wasn't the reason we dismissed them.“THE COURT:  From here on out.   Any jurors excluded will be made at side bar.   Let me know which ones you're excluding before the exclusion takes place.“MR. COURTNEY:  I've always indicated to the court before-- you want me to approach the bench?“THE COURT:  Approach the side bench.”

7.   In People v. Williams (1994) 31 Cal.Rptr.2d 769, 26 Cal.App.4th Supp. 1, 5, it was held the trial court's decision to conduct peremptory challenges at sidebar did not violate defendant's right to a public trial.

8.   In People v. Colon (1996) 228 A.D.2d 609, 644 N.Y.S.2d 755 the defense's subsequent explanation for the challenge against “Oriental” jurors, that “she works in a bank and speaks a foreign language,” was found to bear no relation to the case and denial of the challenge proper.

9.   People v. Smith is distinguishable from the present case because it was found the trial court's reseating an excused juror, rather than excusing the entire panel and calling for a new venire, was reversible per se.

10.   As a defendant with two or more prior serious felony convictions, Taylor would be subject to two mandatory 25 years to life sentences for the robbery and burglary convictions. (§ 1170.12, subd. (c)(2)(A)(ii).)   The burglary sentence, however, would have to be stayed under section 654.   Taylor was also subject to a one-year sentence enhancement because the robbery was committed against a person 65 years of age or older. (§ 667.9, subd. (a).)  This would have resulted in a total unstayed sentence of 26 years to life.   The trial court, however, did not impose sentence or the aged-person enhancement.   But for the prosecutor's agreement, Taylor could also have been sentenced to four consecutive five-year enhancements under section 667, subdivision (a) and a consecutive one-year enhancement under section 667.5.   This would have resulted in a total unstayed sentence of 47 years to life.

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.

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