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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Brian Edgar JACKSON, Defendant and Respondent.

No. D022042.

Decided: January 04, 1996

Paul J. Pfingst, District Attorney, Thomas F. McArdle and Julie A. Whitaker, Deputy District Attorneys, for Plaintiff and Appellant. Ronda G. Norris, by appointment of the Court of Appeal, San Diego, for Defendant and Respondent.

In this case we address the narrow legal issue of whether the trial court prejudicially abused its discretion by failing to grant the People's motion to amend a criminal complaint to “plead” prior felony convictions as mandated by the newly enacted three strikes law (Pen.Code,1 § 667, subd. (b)–(i)) 2 after a guilty plea to the face of the complaint was entered in municipal court.   Under the procedural facts of this case, we conclude that it did.


On August 9, 1994, Jackson was charged by complaint with a commercial burglary (§ 459) and petty theft with a prior (§§ 484/666) arising out of criminal conduct occurring on August 5, 1994.   The complaint also alleged Jackson had suffered a prior serious felony conviction for residential burglary within the meaning of the three strikes law.  (§§ 459, 667, subds. (b)–(i).)   After defense counsel was appointed, Jackson pled not guilty to the charges and a preliminary hearing was set for August 23, 1994.

At that time, the parties appeared in the presiding department of San Diego Municipal Court to be assigned a courtroom for the preliminary hearing.   The prosecutor advised Jackson's counsel and the court he wanted to file an amended complaint alleging Jackson had suffered 10 prison priors.   The presiding judge told the prosecutor to file the motion in the department assigned for the preliminary hearing.   The prosecutor did so.

After an unreported chambers conference, the court heard arguments on whether Jackson had the right to plead guilty to the original complaint before the filing of the amended complaint and whether he could then waive a probation report and be immediately sentenced to the maximum term allowed by law for the original complaint.

Counsel apprised the court of the basic facts of the current case which involved the stealing of three packages of steaks totaling about $23 from a grocery store, and included a struggle and fight with store security and a police officer when Jackson tried to flee after being caught.3  The prosecutor explained the purpose of the amended complaint was not to charge new offenses, but to allege prior felony convictions which would merely subject Jackson to increased penalties due to his recidivism.   He informed the court he had manually researched Jackson's prior record since the time of the arraignment and this was the first opportunity he had to file the amended complaint.   Although no actual violence appeared in Jackson's priors, they included two residential burglaries from 1991 and 1982 and a robbery involving the taking of a purse by force.

Defense counsel opposed the motion to file the amended complaint as untimely, claiming Jackson had an absolute right to plead guilty to the original complaint and to be immediately sentenced without the need of a probation report.

The court characterized the matter as a “race to the courthouse,” opining both parties arrived simultaneously.   The court posited the matter as a question of exercising its discretion to decide between the right of the People to file the amended complaint and Johnson's right to plead guilty to the existing complaint.   As to the situation, the court stated:

“And what we're talking about is the difference between what the maximum penalty would be under the amended complaint.  [¶] And it looks like under the present complaint, the maximum penalties we're looking at is just probably seven years.  [¶] The maximum penalty we're looking [at] on the amended complaint, if that's true, [which] alleges at least two [serious felony priors], these two strike priors, talking about 25 to life in terms of penalties․”

The court acknowledged that although it thought it was harsh and inappropriate “to send someone to 25 to life for taking a bicycle, lunch, and then committing a petty theft or with the prior or possession of methamphetamine or cocaine, small amounts[,] the law requires that․”  In spite of not knowing enough about Jackson's priors, the court said its “personal feeling is that seven years with 80 percent of actual time to be served ․ is sufficient penalty for stealing some steaks, whether he planned it or not.”   The court thus denied the filing of the amended complaint on the above stated grounds and also because “it's untimely in terms of the filing of it.” 4  The denial was without prejudice “to reconsider [the motion] prior to sentencing.”

Over the prosecutor's objection, the court took Jackson's plea to the face of the complaint, including his admission to the one alleged strike prior.   The prosecutor immediately objected to the court's intent to impose sentence at that time, requesting a probation report to help the court properly sentence Jackson, and also moved under section 9691/212 to file the amended complaint setting forth the 10 prison priors.   The court overruled the objection, denying both request and motion, stating it was keeping jurisdiction under section 1170, subdivision (d), and might reconsider the matters after looking at written authorities.

When pressed to state reasons for its denials, the court stated:

“We previously discussed the probation report.   In this case there is an agreement and acceptance by the defendant of the upper term, ․ [¶] And [Jackson's] not going to request probation ․ so there is no need to submit a statement in aggravation and no need to continue ․ to receive a probation report.”

The court also stated it was exercising its discretion under section 9691/212 not to accept the amended complaint because such was basically untimely, and for its previously stated reasons, which it did not want to repeat.

Based on Jackson's agreement to accept the maximum term allowable under the original complaint, the court sentenced him to prison for the upper term of three years for the commercial burglary, which it doubled per section 667, subdivisions (d) and (e) because of his first strike prior, and added an additional one year for his first prison prior for a total term of seven years.5


IIssues and Appealability

The People have appealed under section 1238, subdivision (a)(10),6 claiming the trial court imposed an illegal sentence because the three strikes law mandates Jackson, who has more than two strikes, be sentenced to prison for twenty-five years to life.  (§ 667, subd. (e)(2)(A).)   The People also claim the lower court's agreement to sentence Jackson immediately to the maximum of seven years in exchange for his guilty plea constituted an illegal plea bargain and was in direct violation of the three strikes law.  (§ 667, subds. (d), (e) & (g).)

 In addition to addressing the merits of the People's assertions, Jackson challenges the People's basis for appeal, arguing section 1238 does not provide for an appeal from the trial court's exercise of discretion in denying the motions to file the amended complaint either before or after the taking of his plea.   Because a lower court's order accepting a guilty plea to the crimes charged in an information is usually not appealable “nor may it be attacked by way of an extraordinary writ” (People v. Superior Court of Los Angeles County (Smith) (1978) 82 Cal.App.3d 909, 916, 147 Cal.Rptr. 554), and there was no unlawful sentence in this case since he was properly sentenced to the maximum term on the complaint to which he pleaded guilty, Jackson asks us to dismiss the People's appeal from such unappealable orders.   We do not do so in this case.

In response to Jackson's lack of appealability argument, the People assert the appeal was properly brought since the record shows the procedures and reasons used by the trial court in denying the amended complaint, its subsequent taking of Jackson's plea and its immediate imposition of sentence constituted unlawful orders which in effect “struck” or “otherwise modifie[d] the effect of [Jackson's] prior conviction[s]”  (§ 1238, subd. (a)(10)), which the People were mandated to “plead” under the three strikes law.  (§ 667, subds. (f) & (g).)

We agree the People's appeal is properly before us.   In so doing, we fully recognize, as did the court in People v. Eberhardt (1986) 186 Cal.App.3d 1112 at page 1123, 231 Cal.Rptr. 387 that:

“ ‘[T]he Legislature has determined that the People shall have no right of appeal in criminal cases except under certain limited circumstances.   [Citations.]  The Legislature has struck a delicate balance between the competing considerations of preventing harassment of the accused and correcting possible error, and the courts should not destroy that equalibrium by stretching the statutory language beyond its manifest meaning.  [Citation.]’  [Citation.]”  (Ibid.)

However, we cannot conclude the Legislature meant to deny the People an appeal in a case like this where the trial court's rulings, which improperly involved sentencing considerations, have in effect thwarted the imposition of a sentence based upon Jackson's true qualified repeat offender status under the three strikes law.  (See People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 469, 255 Cal.Rptr. 46.)   The court's orders denying the amendment to allege Jackson's prior felony convictions were tantamount to “striking” those priors so it could impose a lesser punishment than required under the new law.

Generally, “[a]n order striking a prior is appealable under section 1238, subdivision (a)(1) or (a)(6).  [Citations.]”  (People v. Eberhardt, supra, 186 Cal.App.3d at p. 1123, 231 Cal.Rptr. 387.)   In a situation where the trial court had stayed imposition of sentence on an enhancement, the court in Eberhardt concluded, “It would be anomalous, to say the least, to insulate the trial court's action from review here because it used an unauthorized procedure.   Thus the fact striking enhancement allegations under section 1385 is appealable strongly militates in favor of appealability here as well.”   (Ibid., original italics.)

Although, subdivision (a)(10) of section 1238 was not in existence at the time Eberhardt was decided, that court's rationale similarly applies in this case.   The court's unauthorized procedures of considering sentencing matters when ruling on the amendment issue “strongly militates in favor of appealability here as well.”  (People v. Eberhardt, supra, 186 Cal.App.3d at p. 1123, 231 Cal.Rptr. 387.)   Thus, regardless of the technically legal sentence imposed for the pleas taken in this case, we believe the court's procedures based upon its personal beliefs Jackson's seven-year term was sufficient punishment for the current crime resulted in the imposition of an arguably unauthorized or illegal sentence in violation of the legislative mandate, which was approved by the electorate in passing Proposition 184, that the People plead all prior felony convictions.7  (§§ 667, subds. (f)(1), (g);  1170.12, subds. (d)(1), (e);  see People v. Vessell (1995) 36 Cal.App.4th 285, 289, 42 Cal.Rptr.2d 241;  People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 469, 255 Cal.Rptr. 46.)


Prior Felony Convictions Amendment

 Turning to the People's contention the trial court prejudicially abused its discretion in denying their motions to amend the criminal complaint to allege 10 prior felony convictions suffered by Jackson, at least two of which were “serious” priors as defined under the three strikes law (§ 667, subd. (d)), we first review the statutory “framework within which criminal pleadings are amended․”  (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 472, 255 Cal.Rptr. 46.)

Under section 1009,8 formerly section 1008, the People may amend a pleading without leave of court only before a plea or a sustained demurrer.   Afterwards, it is necessary to obtain the court's permission to amend the pleading.  (4 Witkin, Cal.Criminal Law (1989) Proceedings Before Trial, § 2090, pp. 2459–2460.)   Section 969a provides an indictment or information may be amended to charge prior felony convictions “forthwith” and “upon order of the court” whenever such are discovered.9  Section 9691/212 expressly authorizes the superior court to amend a complaint adding charges of prior convictions even after the defendant has pleaded guilty in the municipal court.10  (See People v. Carson (1941) 45 Cal.App.2d 554, 557–559, 114 P.2d 619.)

 As pertinent to this case, the court in Alvarado noted the “focus of the trial court's exercise of discretion in ruling on a motion to amend should be directed primarily to determining whether, on the facts presented, the requested amendment would prejudice [the defendant's] substantial rights.”  (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 477, 255 Cal.Rptr. 46.)   After extensively examining the legislative history behind the amendment sections, it concluded a trial court has the same type of discretion under section 9691/212 as it does under section 1009 to refuse an amendment offered by the People after a guilty plea in municipal court.  (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 476, 255 Cal.Rptr. 46.)   The court in Alvarado, however, pointed out the court's discretion to refuse such amendment was not “boundless,” stating:

“ ‘Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all the circumstances before it being considered.  [Citations.]  ․ [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court.  [Citations.]’  [Citation.]”   (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 477, 255 Cal.Rptr. 46.)

When we apply this law and standard in light of the required application of the three strikes law to this case, we reach the same conclusion as the court in Alvarado did, albeit on slightly different facts,11 that “the trial court's denial of the People's motion to amend the pleadings constituted an abuse of its discretion.”  (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 477, 255 Cal.Rptr. 46.)

Here the circumstances presented to the trial court reveal Jackson rushing to enter a guilty plea to the original complaint once the prosecutor sought to amend that complaint to allege Jackson's recently discovered prior felony convictions.   Although Jackson did not attempt a fraud upon the court, as had the defendant in Alvarado, the words used by the trial court in ruling on the People's motion to amend clearly reveal its “discretion” was guided solely by sentencing or punishment concerns, i.e., its personal view as to the effect the three strikes law would have on Jackson.   Even though by the end of the hearing on the motions, the court was aware of Jackson's extensive criminal background and had some understanding of the complexity of his present offense, which actually involved some violence in Jackson's attempt to escape after being caught with the stolen steaks, it ignored these considerations in an effort to avoid the mandate of the three strikes law that a person like Jackson with two or more serious or violent felonies would serve a minimum of 25 years to life in prison.  (§ 667, subd. (e)(2)(A)(ii).)

The court's handling of this matter as a “race to the courthouse” also glossed over the competing legal interests involved in this case.   While the language of section 859a, subdivision (a) has in the past generally been construed as requiring the magistrate to accept a defendant's plea of guilty to the face of the complaint (Cronk v. Municipal Court of Sacramento (1982) 138 Cal.App.3d 351, 354, 188 Cal.Rptr. 28), the Legislature has also long provided the prosecution with statutory procedures to add charges to an accusatory pleading at all stages of the proceeding before judgment to reflect the true “ ‘extent to which an individual is legitimately subject to prosecution.’   [Citation.]”  (In re Bower (1985) 38 Cal.3d 865, 874–877, 215 Cal.Rptr. 267, 700 P.2d 1269.)   With the recent enactment of the three strikes law and the passage of Proposition 184 by the electorate, the societal interest in prosecuting recidivist offenders has been given more weight in this balance of interests.   It is clear not only from the stated purpose of the legislation and the initiative but from an examination of the statutory provisions that the purpose of three strikes laws is to increase significantly the sentences of recidivist felony defendants and to curtail the prosecutor's and court's discretion in dealing with them.12

As relevant here, the plain language of section 667, subdivisions (f)(1) and (g) requires the prosecutor to “plead and prove each prior felony conviction ․” and “shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation․”  These sections have recently been held to mean exactly what they say without reference to when the prosecution is required to present such proof.13  (Miranda v. Superior Court (1995) 38 Cal.App.4th 902, 906–907, 45 Cal.Rptr.2d 498.)

Thus, under the facts of this case, we cannot find, as Jackson would have us do and the trial court in effect did, that section 859a, subdivision (a), whose purpose is “ ‘to allow a speedy process for defendants and eliminate unnecessary procedural niceties to allow the efficient disposition of criminal matters' ” (Cronk v. Municipal Court of Sacramento, supra, 138 Cal.App.3d at p. 354, 188 Cal.Rptr. 28), overrides the People's right to amend the complaint to allege what the Legislature and electorate have emphatically commanded the People to plead.   Nor can we find support in this record for the court's denial reason that the amendment sought by the People was untimely.   Because a defendant's criminal background is not always fully known to the People at either the time of arrest or preliminary hearing sections 969a and 9691/212 have historically permitted amendment of the accusatory pleading whenever it is discovered such does not allege all the prior felonies of which a defendant has suffered.

Somewhat similar to the situation in Alvarado, the trial court's focus here should have been on whether the requested amendment would prejudice Jackson's substantial rights in light of existing law and circumstances, not on what ultimate punishment could be imposed.   Although alleging prior prison terms and prior serious or violent felony convictions is prejudicial in the sense that Jackson would prefer them not to be alleged, the amendment sought here would not in fact prejudice his substantial rights.   No delay in seeking the amendment was shown.   Nor were new charges or any changes in the current offenses sought by the amendment.   Rather such amendment would have merely placed Jackson in the position he should have been in for the preliminary hearing where he first learned of the prosecutor's motion to amend and immediately entered his guilty plea under section 859a and requested immediate sentencing.

The trial court impermissibly injected its own personal beliefs about punishment to deny the motion to amend before Jackson's plea to the original complaint in order to avoid the severe consequences he would face under the three strikes law.   When the court, after the taking of the plea, denied the renewed motion to amend as untimely, and sentenced Jackson over the People's objection, it failed to properly exercise its legal discretion.   As such, it exceeded the bounds of reason and its orders denying the motion to amend the original complaint must be reversed.   Consequently, the judgment, based upon those orders, must also be reversed.14


The judgment is reversed.   The trial court is directed to vacate the orders denying the amendment to the complaint to allege the priors, to grant the motion to amend to allege such priors and to arraign Jackson on the amended complaint.   In the interest of fairness, Jackson should be given the opportunity to withdraw his guilty plea to the face of the original complaint.   If he chooses not to do so, he will stand convicted of those charges and allegations and proceed to jury or court trial solely on the amended complaint, unless, of course, he wishes to also admit the truth of those allegations.


FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

2.   A “three strikes” law was enacted as urgency legislation on March 7, 1994, and is set forth in section 667, subdivisions (b) through (i).  (Stats.1994, ch. 12.)   Proposition 184 approved by the California voters on November 9, 1994, added section 1170.12 to the Penal Code, which contains almost identical provisions to those found in section 667, subdivisions (b) through (i).   Because Jackson was charged with a crime after the enactment of section 667, subdivision (b) through (i) but before the passage of Proposition 184, our discussion of the three strikes law necessarily refers to section 667, subdivisions (b) through (i).   Our review of the two statutory schemes, however, has revealed no significant differences between them regarding the provisions at issue here.

3.   The record reflects counsel told the court about the present offense in such a piecemeal fashion that by the time it ruled on the motions, the court appeared reluctant to proceed with its original ruling to deny the amendment and to take Jackson's plea.

4.   The prosecutor again spoke to the issue of timeliness, reiterating Jackson had only been arrested and arraigned on the original charges for a short time, many of the 10 priors dated back to 1977 and had to be manually pulled and researched, the amended complaint did not change the underlying charges, the court should not strike or deny an amended complaint, and Jackson's remedy should be only a continuance to research the issue of the priors.   The court responded it understood what the prosecutor had already said and emphasized it could not ignore its personal view that punishment of seven years was enough punishment for stealing steaks “even if [Jackson] does have a record and even though he is a career thief, if you want to call him a career thief, which I think, if the records are correct, it's true.”

5.   Although the abstract of judgment reflects the trial court stayed under section 654 the upper term for the count 2 petty theft with a prior, oral pronouncement of sentence reflects otherwise.

6.   Section 1238, subdivision (a)(10) provides the People may appeal from:  “The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence․  As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”

7.   Although the Legislature has subsequently amended section 1238 regarding appeals involving probation orders (§ 1238, subd. (d)), we believe the procedural situation in this case is somewhat analogous to earlier cases finding the People had a right to appeal from probation orders which were made in violation of statutes prohibiting such disposition.  (§ 1238, subd. (a)(6);  People v. Gaines (1980) 112 Cal.App.3d 508, 512–514, 169 Cal.Rptr. 381;  People v. Orrante (1962) 201 Cal.App.2d 553, 555–558, 20 Cal.Rptr. 480.)Moreover, as we discuss in the next section of this opinion, because the legal issue concerning the required pleading of all prior felony convictions under the three strikes law is of such importance, were we to find no statutory right for the People's appeal, we would treat this appeal as a petition for writ of mandate based on the trial court's actions in excess of its jurisdiction.  (See People v. Superior Court (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 446 P.2d 138;  People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 469, 255 Cal.Rptr. 46;  People v. Superior Court (Martin) (1979) 98 Cal.App.3d 515, 518–520, 159 Cal.Rptr. 625.)

8.   Section 1009 provides:  “An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney in any inferior court, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained.   The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed․”

9.   Section 969a provides:  “Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary.   Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto.”

10.   Section 9691/212 provides:  “Whenever it shall be discovered that a pending complaint to which a plea of guilty has been made under section 859a of this code does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, said complaint may be forthwith amended to charge such prior conviction or convictions and such amendments may and shall be made upon order of the court.   The defendant shall thereupon be arraigned before the court to which the complaint has been certified and must be asked whether he has suffered such previous conviction.   If he answers that he has, his answer must be entered by the clerk in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings.   If he answers that he has not, his answer must be entered by the clerk in the minutes of the court, and the question whether or not he has suffered such previous conviction must be tried by a jury impanelled for that purpose, unless a jury is waived, in which case it may be tried by the court.   The refusal of the defendant to answer is equivalent to a denial that he has suffered such previous conviction.”

11.   The court in Alvarado found the trial court's denial of the People's request to amend the complaint an abuse of discretion since it was based on sentencing concerns as well as the defendant's fraud in falsely identifying himself so his prior convictions could not earlier be found.   (People v. Superior Court (Alvarado), supra, 207 Cal.App.3d at p. 477, 255 Cal.Rptr. 46.)

12.   A perceived failure of the criminal justice system to deal effectively with recidivism is evident from the initiative proponents' arguments which refer to the “judicial system's revolving door” (Ballot Pamp., argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36) and “soft-on-crime judges, politicians, defense lawyers and probation officers” (Ballot Pamp., rebuttal to the argument against Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 37).

13.   The court in Miranda held the prosecutor is not required to introduce evidence of strike priors at the preliminary hearing and found there was no “persuasive reason why [the amendment statutes] should not be applied in a three strikes case.”  (Miranda v. Superior Court, supra, 38 Cal.App.4th at p. 909, 45 Cal.Rptr.2d 498.)

14.   Because we resolve this matter on this narrow issue, we do not reach the People's other contentions.

HUFFMAN, Associate Justice.

WORK, Acting P.J., and NARES, J., concur.