PEOPLE v. CASA

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant, v. Sidney CASA, Defendant and Respondent.

No. B090308.

Decided: December 22, 1995

Gil Garcetti, Los Angeles District Attorney, Frank Elmer Sundstedt Jr., Chief Deputy District Attorney, Patrick D. Moran, Otis L. Hubbard, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Los Angeles Public Defender, Albert J. Menaster, Alex Ricciardulli, Tracy Mooney, Deputy Public Defenders, for Defendant and Respondent.

I. INTRODUCTION

The People of the State of California appeal after the trial court only imposed an eight-year sentence on defendant, Sidney Casa, a recidivist with a lengthy record of felony and misdemeanor convictions.   Defendant pled no contest to two counts of cocaine possession in violation of Health and Safety Code section 11350 and admitted that three prior serious felony conviction allegations (Pen.Code,1 § 667, subd. (b)-(i) were true.   The trial court later dismissed two of the three prior serious felony conviction findings pursuant to section 1385 at the probation and sentence hearing.   The People contend and we conclude that the trial court exceeded the scope of its allowable sentencing discretion in dismissing or striking two of the three prior felony conviction findings.   We remand to allow defendant the opportunity to withdraw his no contest plea and the admissions of the prior serious felony convictions.

II. FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report and the preliminary hearing transcript, on April 28, 1994, defendant was observed by two Los Angeles Police officers who were conducting an unrelated investigation.   The officers concluded defendant might have been under the influence of heroin.   As they walked towards defendant, he dropped two rocks of cocaine.   Defendant then said:  “You got me.   I just got out of prison.”   Defendant then said, “I need help․”  Defendant was thereupon arrested.   While at the police station, the officers determined defendant was not actually under the influence of heroin “at that time․”  However, defendant had “several” “needle puncture wounds”;  one of which was “approximately a day old.”   The two rocks of cocaine defendant dropped weighed a total of .61 grams.

Five days later, on May 3, 1994, while released on his own recognizance, defendant was observed in an area with a high incidence of:  narcotics activity;  street robberies;  and gang violence.   A van traveling on Marigold Street stopped.   Defendant was observed to walk up to the van.   Defendant gave an object to the van driver.   After handing the object to the van driver, defendant quickly turned and placed what was later determined to be 3 rocks of cocaine with a total weight of .07 grams underneath a bush “on some concrete.”   The cocaine was placed in such a manner a person walking on the sidewalk would not be able to see the three rocks of cocaine.   Los Angeles Police Officer Todd Rhinegold, who was assigned to Metropolitan Division, concluded based upon the foregoing facts that defendant was engaging in “behavior consistent with narcotics trafficking.”   Defendant was then arrested.

After he was held to answer at the conclusion of two separate preliminary hearings, a consolidated information was filed.   In count 1 of the consolidated information, defendant was charged with cocaine possession in violation of Health and Safety Code section 11350.   In count 2, defendant was also charged with cocaine possession in violation of Health and Safety Code section 11350.   Additionally, as to count 2, it was alleged that defendant committed the offense while released on his own recognizance within the meaning of section 12022.1, subdivision (b) after his April 28, 1995, arrest on cocaine possession charges.   As to both counts in the consolidated information, the following additional special allegations were pled:  defendant had previously been convicted of serious felonies on three occasions within the meaning of section 667, subdivisions (b)-(i);  he had served prior prison terms on five occasions within the meaning of section 667.5, subdivision (b);  he had twice been convicted of drug offenses within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c);  and he had been convicted of felonies on six prior occasions within the meaning of section 1203, subdivision (e)(4).

After defendant entered a plea of not guilty to these charges and denied the special allegations, his case was set for trial on November 2, 1994.   When the case was called on November 2, 1994, defense counsel announced that defendant wanted to change his plea.   It bears emphasis that throughout the November 2, 1994, proceedings, the parties assumed, albeit erroneously, that defendant's maximum potential sentence was 31 years to life.   As will be noted later, defendant's maximum potential sentence was actually significantly greater.  (See fn. 2, infra.)   The trial court indicated:  “For the record, the court has discussed this matter with counsel in chambers and has indicated a tentative sentence in this case of eight years.   The court would accept an open plea with the understanding that if the court, upon reviewing the probation report, feels that it could not, because of the information therein contained or any other information, abide by the eight-year agreement, the court would permit the defendant to withdraw his plea.”   The prosecutor objected to the proposed settlement and stated:  “In this case, your honor, it remains the People's position that the court does not have legal authority under the clear language of Penal Code section 667(b) through (i), and the language of Penal Code section 1385(b), to strike strikes with the intention of effecting a plea bargain in the case.   This defendant does have a very long, spectacular, and more or less continuous criminal record since 1981.   So we object for the record to the striking of any strikes.”   Defendant then entered pleas of “no contest” to both counts and admitted the truth of the special allegations including the three prior convictions for serious felonies.

On November 16, 1994, the probation and sentence hearing was held.   The probation report and other documents in the superior court files indicated, in addition to the factual matters previously described, the following.   Defendant, who had used six different aliases and had four social security numbers, was first convicted of petty theft as a misdemeanor on March 12, 1980, and was placed on three years probation upon the condition he serve 45 days in the county jail.   While on misdemeanor probation, he was convicted shortly before September 11, 1981, of bank robbery in violation of 18 United States Code section 2113(a) and sentenced to between four and six years in the federal penitentiary.   He was paroled on February 12, 1985.   While still on federal parole, on October 1, 1985, he was arrested for being under the influence of phencyclidine in violation of Health and Safety Code section 11550, subdivision (b).   While awaiting trial on the misdemeanor under the influence charge and still subject to federal parole supervision, on November 30, 1985, defendant was arrested and charged with:  robbery in violation of section 211;  the unlawful taking of a motor vehicle (Veh.Code, § 10851, subd. (a));  grand theft of an automobile (former § 487, subd. 3;  Stats.1982, ch. 375, § 1, p. 1693);  and being under the influence of a controlled substance.  (Health & Saf., Code § 11550, subd. (b).)  On January 8, 1986, he was sentenced to the county jail on the under the influence charge for which he had previously been arrested on October 1, 1985.   On January 16, 1986, defendant was placed on 3 years probation on the condition he serve 365 days in county jail as a result of the aforementioned state robbery charge.   As to the state robbery charge, defendant indicated he was under the influence of phencyclidine and along with a group of other persons, he “took a car.”   On July 25, 1986, defendant was found in violation of his federal bank robbery parole.

On May 2, 1987, while on felony probation, defendant was arrested for possession of narcotics paraphernalia in violation Health and Safety Code section 11364.   On May 4, 1987, defendant pled guilty to the narcotics paraphernalia charge and was placed on summary probation.   On May 26, 1987, while still on felony probation, defendant was arrested for trespassing in violation of section 602, subdivision (l ) and placed on summary probation on May 27, 1987, after he pled guilty.

While still on felony probation on June 29, 1987, defendant was arrested for trespassing in violation of section 602, subdivision (1).   On July 5, 1987, defendant was once again arrested for trespassing.  (§ 602, subd. (1).)  On the next day, July 6, 1987, defendant was convicted and placed on 24 months probation on the condition that he serve 10 days in the county jail.   On August 26, 1987, defendant was found in violation of his state robbery probation and was sentenced to prison for two years.   On January 27, 1988, defendant was finally convicted in connection with the misdemeanor trespassing charge of June 29, 1987.   He was placed on 24 months probation and 1 of the probation terms was that he serve 5 days in county jail.

On January 30, 1988, defendant was paroled from state prison.   On February 1, 1988, the day after he was paroled, defendant was arrested on a drug charge.   His parole was revoked and on February 11, 1988, he was returned to state prison custody.   On June 26, 1988, after he was once again released from prison, defendant was arrested for assault with a deadly weapon (§ 245, subd. (b)) and he pled guilty to a misdemeanor concealed weapons charge in violation of Los Angeles Municipal Code section 55.01 on June 29, 1988.   Defendant received a 10–day misdemeanor sentence.   On July 5, 1988, defendant was arrested for trespassing in violation section 602, subdivision (n).   On July 10, 1988, he was convicted of the trespassing charge and received a 10 day jail sentence as a condition of summary probation.   On July 26, 1988, defendant was arrested and charged with felony possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a).   The probation report indicated defendant was under the influence of phencyclidine and a taser device was utilized by the authorities in effecting his arrest.   Later, investigators found “crumbs of cocaine in the back seat of the car” in which defendant was riding.   Defendant was convicted and placed on three years probation.   On August 8, 1988, defendant was arrested after selling $10 worth of cocaine.   He was charged with sale of cocaine (Health & Saf.Code, § 11352) and later sentenced to prison on November 14, 1988, for a three-year term.

On April 29, 1990, defendant was paroled from state prison custody.   On June 6, 1990, defendant was charged with possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) and, after pleading guilty, was placed on probation for a three year period.   On July 20, 1990, defendant was returned to state prison custody because he was in violation of a parole condition.   On August 21, 1990, defendant was once again paroled.   Within one hour of his release, defendant robbed a taxicab driver.   He was later convicted by a jury of robbery and sentenced to prison for a seven year term.   He was paroled from prison on April 27, 1994, the day before he was arrested when he dropped the two rocks of cocaine which were the basis of the charge in count 1.   It is noteworthy that when he was arrested the day after was released from prison, defendant had a needle puncture mark on his arm which was 24 hours old.

Additionally, the probation report indicated that:  defendant's “primary drug of choice” was “ ‘rock cocaine’ ”;  he began using cocaine base in 1987;  he used cocaine base while on parole;  he had “ ‘slowed down’ ” his use of heroin since 1981;  in 1985 and 1986, defendant used phencyclidine;  and in 1985 he was “ ‘thrown out’ ” of a drug program.   Defendant, who earned a general equivalency degree when incarcerated in the federal penitentiary, had not been employed since 1981—a period of 13 years.   He did earn an unidentified amount of money from the following, “He does tattoos on a cash basis only, and also admits selling drugs for money.”   Defendant had failed to report to his parole officer upon his release from prison custody.   Defendant admitted he possessed the two rocks of cocaine he dropped on April 28, 1994, the day after his release from prison.   As to the cocaine left in the bushes on May 3, 1984, defendant's explanation was recited by the deputy probation officer as follows:  “The defendant denies knowledge of what the substance was.”   At no time did defendant report to a parole officer.

The probation officer concluded:  “The defendant, who is a 35–year-old parolee, with a serious history of criminal activity involving violence and drug-related crimes.   Previous attempts at probation, and parole, have failed to deter this defendant from continued criminal activity.   Therefore, the defendant is certainly not suitable for community-based supervision.   Additionally, the defendant's convictions in the instant matters also serve to make him ineligible for community-based supervision.”   The probation officer listed as circumstances in aggravation:  there was evidence of planning in connection with the offenses;  defendant's prior convictions were numerous;  he was on parole at the time of the commission of the offenses;  and his prior performance on probation and parole was unsatisfactory.

 On November 16, 1994, the probation and sentencing hearing was held.   At the time of sentencing, defendant stood convicted of six state felonies, one federal felony, and nine misdemeanors.   The prosecutor reiterated the objections interposed prior to the entry of the plea to the court striking any findings of serious prior felony convictions.   The court pronounced judgment as follows:  “The court has considered the following circumstances in aggravation:  that the planning indicated premeditation;  the defendant's prior convictions are numerous;  the defendant was on parole when he committed the crime;  and his prior performance on probation and parole were unsatisfactory.   There are no circumstances in mitigation.  [¶] As to count one, the defendant is ordered committed to the Department of Corrections for a period of six years.   That being the high term doubled in accordance with section 667(E) of the Penal Code.  [¶] As to count two, the sentence is the same;  that is concurrent, to be served concurrent with the time on count one.  [¶] As to the special allegation pursuant to section 12022.1, the defendant is ordered committed to the Department of Corrections for a term of two years consecutive to the time on count[s] one and two, making a total of eight years.  [¶] The priors, pursuant to Penal Code section 667.5(B), are stricken for purposes of sentencing.  [¶] The priors, pursuant to section 667(B) through (I) specifically, those in case 73063–012 and case number A032289, which are alleged as violent or serious felonies pursuant to section 667(B) through (I), are stricken for purposes of sentencing for the reason that, under the specific facts of this case, failure to do so would mandate punishment which is grossly disproportionate to the conduct charged here charged.   In doing this, the court is proceeding in the furtherance of justice under the provisions of section 1385 of the Penal Code, and under the authority of the Supreme Court decision in the case of People versus Tenorino, [sic ] in a 1970 case found at 3 California 3d. Page 89 [89 Cal.Rptr. 249, 473 P.2d 993].   By so striking the allegations the court does not intend to and does not strike the allegations of prior felony convictions for any other purpose.” 2  The court also imposed some minor fines.   Defendant was given credit for 198 days of actual physical confinement prior to judgment plus 99 days of conduct credits.3

III. DISCUSSION

A. The Nature of Recidivist Statutes Such as Section 667

 Before proceeding to an analysis of whether the trial court exceeded the scope of its allowable sentencing discretion, we clarify the nature of the charges present in this case.   Defendant, as did the trial court, characterizes the cocaine possession charges, as compared to murder, robbery, or rape, as comparatively minor offenses.   Characterizing the present case as involving only two instances of cocaine possession misstates the charges and nature of defendant's extensive criminality.   This case does not merely involve allegations of possessing a small quantity of cocaine on two separate occasions.  Section 667, subdivisions (b)-(i) involves the application of a recidivism statute which is a historically recognized sentencing process in this state and country.  (See Graham v. West Virginia (1912) 224 U.S. 616, 622, 32 S.Ct. 583, 585, 56 L.Ed. 917;  McDonald v. Massachusetts (1901) 180 U.S. 311, 312, 21 S.Ct. 389, 390, 45 L.Ed. 542;  In re Rosencrantz (1928) 205 Cal. 534, 537–541, 271 P. 902.)   The United States Supreme Court has described the nature of a similar recidivist statute in a case where a repeat offender received a life sentence after being convicted of obtaining $112.75 by false pretenses as follows:  “In this case, however, we need not decide whether Texas could impose a life sentence upon [defendant] merely for obtaining $120.75 by false pretenses.   Had [defendant] only committed that crime, under the law enacted by the Texas Legislature he could have been imprisoned for no more than 10 years.   In fact, at the time that he obtained the $120.75 by false pretenses, he already had committed and had been imprisoned for two other felonies, crimes that Texas and other States felt were serious enough to warrant significant terms of imprisonment even in the absence of prior offenses.   Thus the interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person's property;  it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.   By conceding the validity of recidivist statutes generally, [defendant] himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons.”  (Rummel v. Estelle (1980) 445 U.S. 263, 276, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382;  accord Texas v. McCullough (1986) 475 U.S. 134, 144, 106 S.Ct. 976, 981, 89 L.Ed.2d 104;  Cocio v. Bramlett (9th Cir.1989) 872 F.2d 889, 893;  In re Rosencrantz, supra, 205 Cal. at p. 539, 271 P. 902.)   Later, the United States Supreme Court noted, “Having twice imprisoned him for felonies, Texas was entitled to place upon [defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.”  (Rummel v. Estelle, supra, 445 U.S. at p. 284, 100 S.Ct. at p. 1144.)   Later, in Parke v. Raley (1992) 506 U.S. 20, ––––, 113 S.Ct. 517, 522, 121 L.Ed.2d 391, the United States Supreme Court described the nature of recidivist statutes as follows:  “States have a valid interest in deterring and segregating habitual criminals.  [Citation.]  We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only.  [Citations.]  And we have repeatedly upheld recidivism statutes ‘against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.’   [Citations.]”  The United States Supreme Court has described a habitual offender finding in this manner:  “Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is ‘essentially independent’ of the determination of guilt on the underlying substantive offense.”  (Oyler v. Boles (1962) 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446;  accord Graham v. West Virginia, supra, 224 U.S. at p. 622, 32 S.Ct. at p. 585.)   California appellate courts have repeatedly held that when a defendant's criminal conduct has been proven to be immune from ordinary modes of punishment, it is the duty of the judiciary to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons.  (In re Rosencrantz, supra, 205 Cal. at p. 539, 271 P. 902;  People v. Coleman (1904) 145 Cal. 609, 611, 79 P. 283;  People v. Weaver (1984) 161 Cal.App.3d 119, 125, 207 Cal.Rptr. 419;  People v. Jacobs (1984) 157 Cal.App.3d 797, 802, 204 Cal.Rptr. 234;  People v. Stone (1945) 69 Cal.App.2d 533, 535, 159 P.2d 701;  People v. Rose (1938) 26 Cal.App.2d 513, 519, 79 P.2d 737.)   Further, California courts have held that the enhanced punishment is imposed not merely because of the new offense, but because of the habitual offender's character (People v. Romer (1933) 218 Cal. 449, 452, 23 P.2d 749), and previous criminal conduct.   (People v. Biggs (1937) 9 Cal.2d 508, 512, 71 P.2d 214;  People v. Calderon (1962) 205 Cal.App.2d 566, 572, 23 Cal.Rptr. 62.)   In fact, the habitual offender finding is not an adjudication of guilt under California law of a substantive offense (In re McVickers (1946) 29 Cal.2d 264, 270, 176 P.2d 40), but rather is a finding concerning the status of the defendant as one who has not in the past obeyed the law.  (People v. Hoerler (1962) 208 Cal.App.2d 402, 408, 25 Cal.Rptr. 209;  People v. Richardson (1946) 74 Cal.App.2d 528, 542–543, 169 P.2d 44.)   Hence the foregoing authority which describes the role of habitual offender statutes historically in this country and state reaches these conclusions:  states have a legitimate interest in more harshly punishing, segregating from society, and deterring from future criminal conduct persons who have repeatedly shown they are incapable of conforming to societal norms;  states have historically pursued that interest with statutes similar to section 667, subdivisions (b)-(i);  the recidivism determination, which is not an adjudication of guilt, is essentially independent from the finding as to the underlying crime;  and courts have a duty to apply recidivism statutes to protect the public.

 The consolidated information in the present case did not merely allege defendant possessed small quantities of cocaine on two separate occasions.   The allegations in the consolidated information were much, much more serious than two cocaine possession counts.   The Legislature has chosen to provide for significantly enhanced punishment for persons such as defendant.   No doubt, the two cocaine possession counts were a material part of the charges.   However, once defendant was convicted of two felony cocaine possession counts by reason of his no contest pleas (People v. Balderas (1985) 41 Cal.3d 144, 203, 222 Cal.Rptr. 184, 711 P.2d 480;  Stephens v. Toomey (1959) 51 Cal.2d 864, 869, 338 P.2d 182), the “essentially independent” habitual offender determination controlled the trial court's sentencing powers and duties to protect the public.  (Oyler v. Boles, supra, 368 U.S. at p. 452, 82 S.Ct. at p. 503.)   Defendant is correct in his argument that the present case involves small quantities of cocaine;  but more seriously it involves allegations and uncontroverted evidence of serious prior felony convictions.   Characterizing the present case as involving less serious felony charges ignores the presence of a recidivism statute (§ 667, subds. (b)-(i)) and the correlative duty on the part of the judicial branch of government to protect the public.

B. Scope of Sentencing Discretion

 The prosecution argues that the trial court abused its discretion in striking two of the three serious felony conviction enhancements pursuant to section 1385.4  We review this issue utilizing the abuse of discretion standard.   The California Supreme Court has described the standard of review of sentencing decisions as follows:  “This discretion, however, is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.  [Citations.]  Discretion is abused when granting probation ‘exceeds the bounds of reason, all of the circumstances being considered.’  [Citations.]”  (People v. Warner (1978) 20 Cal.3d 678, 683, 143 Cal.Rptr. 885, 574 P.2d 1237;  accord, People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225 [order that sentences be served consecutively].)   On another occasion, the California Supreme Court described the test for abuse of discretion in sentencing matters as follows:  “The granting or denial of probation is a matter for the discretion of the trial court.  [Citation.]  However, ‘[t]he courts have never ascribed to judicial discretion a potential without restraint.’  [Citation.]  Discretion is compatible only with decisions ‘controlled by sound principles of law, ․ free from partiality, not swayed by sympathy or warped by prejudice․’  [Citation.]”  (People v. Bolton (1979) 23 Cal.3d 208, 216, 152 Cal.Rptr. 141, 589 P.2d 396.)

 Further, in sentencing a defendant, a trial judge is obligated to consider all of the facts and circumstances of the offense.   The sound exercise of judicial discretion requires a sentencing judge to consider and apply all of the facts concerning a defendant's criminal conduct.   In the decision of In re Cortez (1971) 6 Cal.3d 78, 85–86, 98 Cal.Rptr. 307, 490 P.2d 819, the California Supreme Court expressly set forth the requirement that a proper exercise of judicial discretion involves knowledge and consideration of all the material facts as follows:  “ ‘It is well established in the law that the severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court.  [¶] The term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking.   It imports the exercise of discriminating judgment within the bounds of reason.  [¶] To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.’ ”  (Fn. omitted;  italics added.)   Likewise, Courts of Appeal have repeatedly held that any sentencing decision requires consideration of all the facts concerning the defendant and the crime.  (People v. Strunk (1995) 31 Cal.App.4th 265, 275, 36 Cal.Rptr.2d 868 [resentencing required because superior court judge failed to consider and weigh “all the circumstances”];  People v. Nevill (1985) 167 Cal.App.3d 198, 202, 212 Cal.Rptr. 898 [“[a]chieving uniformity in sentencing requires the sentence imposed be based upon consideration of all relevant aggravating and mitigating factors”];  People v. Green (1982) 142 Cal.App.3d 207, 216, 192 Cal.Rptr. 146 [“the judge shall consider all of the circumstances of the offense and of appellant's participation therein”];  People v. Podesto (1976) 62 Cal.App.3d 708, 723, 133 Cal.Rptr. 409 [“the court should consider all the attendant facts and circumstances as disclosed by the evidence”];  People v. Keogh (1975) 46 Cal.App.3d 919, 934, 120 Cal.Rptr. 817 [“all the material facts in evidence must be both known and considered”].)   Further, it is axiomatic that a defendant's entire criminal record must be considered in sentencing decisions.  (People v. Warner, supra, 20 Cal.3d at p. 685, 143 Cal.Rptr. 885, 574 P.2d 1237 [defendant's three prior child molestation felony convictions considered in determining trial judge abused discretion in granting probation];  People v. Orin (1975) 13 Cal.3d 937, 950–951, 120 Cal.Rptr. 65, 533 P.2d 193 [dismissal of two other charges pursuant to section 1385 an abuse of discretion];  People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193, 80 Cal.Rptr. 913, 459 P.2d 241 [prior narcotics conviction may properly be used to deny probation].)

 The determination as to the penalties to be imposed in criminal cases is, subject to constitutional restrictions, strictly a matter for the Legislature.   In People v. Tanner (1979) 24 Cal.3d 514, 519, 156 Cal.Rptr. 450, 596 P.2d 328, footnote 3, the California Supreme Court held:  “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.   ‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’  [Citation.]  ‘[T]he legislative branch of the government has the power to declare that in certain ․ cases, probation may not be granted.   The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government.   It does not impair, restrict nor enlarge upon the jurisdiction of the courts.   The function of the courts is to determine the guilt or innocence of an accused.   What disposition may thereafter be made by way of penalty is for the Legislature to determine.’  [Citations.]”  (Accord, Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.) 5

 In the present case, the trial court exceeded the scope of its sentencing discretion in striking the two prior felony conviction allegations.   First, the trial court substituted its view of what is the appropriate sentence for recidivist offenders for that of the Legislature and the Governor.   The sentencing judge stated he would impose an eight year sentence because the potential sentence, presumably one of 31 years to life which was the misapprehension that the parties were operating under in the trial court, “would be grossly disproportionate to the conduct here charged.”   However, the Legislature is the body of constitutional government charged with determining what sentences are disproportionate.  (People v. Tanner, supra, 24 Cal.3d 514, at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)   No doubt, the judicial branch may invalidate sentences which are cruel or unusual and has the duty to do so (People v. Dillon (1983) 34 Cal.3d 441, 478, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch (1972) 8 Cal.3d 410, 439, 105 Cal.Rptr. 217, 503 P.2d 921);  however, in the absence of a constitutional violation, the question as to the propriety, desirability, and wisdom of a particular recidivist sentencing scheme is a matter for the Legislature and the Governor, not judges.  (People v. Sipe (1995) 36 Cal.App.4th 468, 482, 42 Cal.Rptr.2d 266.)

Second, the trial court concluded that the sentence was grossly disproportionate “to the conduct here charged.”   As noted previously, a sentencing judge must consider all of the facts before it.  (In re Cortez, supra, 6 Cal.3d at pp. 85–86, 98 Cal.Rptr. 307, 490 P.2d 819.)   The California Supreme Court has repeatedly held that one of the facts that must be considered by a sentencing judge is the accused's prior record.  (People v. Warner, supra, 20 Cal.3d at p. 685, 143 Cal.Rptr. 885, 574 P.2d 1237;  People v. Orin, supra, 13 Cal.3d at pp. 950–951, 120 Cal.Rptr. 65, 533 P.2d 193;   People v. Lo Cicero, supra, 71 Cal.2d at p. 1193, 80 Cal.Rptr. 913, 459 P.2d 241.)   The statement of reasons recited by the trial judge in the present case fails to reflect any consideration of defendant's extraordinary record of prior criminality set forth at pages 718–720 of this opinion.   That record is so serious that we are unable to synthesize or summarize it here in a single paragraph.   Furthermore, to essentially disregard defendant's one and one-half decade of lawlessness in a case where the trial court found there were no mitigating circumstances, was not a sentencing decision that is within the scope of allowable discretion accorded to superior court judges in California.

C. Cruel or Unusual Punishment Issue

 Defendant argues that a 31 years to life sentence would be cruel or unusual punishment within the meaning of article I, section 17 of the California Constitution.   However, we do not address this issue because it is premature to do so.   We have determined that the trial court should not have struck or dismissed two of the three prior felony convictions findings pursuant to section 1385.   Having determined that, the judicious course of action is to allow the matter to return to superior court.   To determine the constitutionality of a 31 years to life sentence which possibly may never be imposed would constitute an advisory opinion.  (Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 971, 9 Cal.Rptr.2d 92, 831 P.2d 317;  People v. Guerra (1984) 37 Cal.3d 385, 429, 208 Cal.Rptr. 162, 690 P.2d 635.)   As noted earlier, the actual lawful sentence that can be imposed is much greater than 31 years to life.  (See fn. 2, supra.)   Further, there were other sentencing errors which render it inadvisable for this court to express an opinion concerning a presumptively constitutional (County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 368, 220 Cal.Rptr. 114, 708 P.2d 693;  California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193) recidivist statute as applied to a person with seven felony and nine misdemeanor convictions who committed his two new felonies on separate dates within one week of his release on parole.   We are not permitted to issue such advisory opinions.  (Salazar v. Eastin (1995) 9 Cal.4th 836, 860, 39 Cal.Rptr.2d 21, 890 P.2d 43;  Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1132, 22 Cal.Rptr.2d 504, 857 P.2d 325.)   Hence, if there is a conviction and sentencing pursuant to section 667, subdivisions (b)-(i) is carried out, we can consider any constitutional issues which are properly preserved for appellate review.   Because defendant is now subject to a sentence greater than that promised by the trial court, on remand, he must be given an opportunity to withdraw his pleas of no contest as well as the admissions to the special allegations.  (In re Moser (1993) 6 Cal.4th 342, 345, 24 Cal.Rptr.2d 723, 862 P.2d 723;  People v. Delles (1968) 69 Cal.2d 906, 910, 73 Cal.Rptr. 389, 447 P.2d 629.)

IV. DISPOSITION

The judgment is reversed.   The matter is remanded to the trial court to permit the defendant to withdraw his no contest plea if he so desires.   If he does not, the court shall resentence him in accordance with the views expressed in this opinion.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   Because we have resolved the petitions on the grounds set forth in the body of this opinion, we do not address other issues presented by the record.   For example, the trial court entered into a plea bargain with defendant.   Under the terms of the agreement, in exchange for the no contest pleas, the trail court offered to strike two of the three serious felony conviction findings.   However, section 667, subdivision (g) states in part, “Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7.”   We do not address the issue of whether the trial court's offer violated the ban on plea bargaining set forth in section 667, subdivision (g).  (People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 533, 230 Cal.Rptr. 890;  People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473, 475–476, 220 Cal.Rptr. 87.)   Further, we do not address the issue of the power of the trial court to strike a prior serious felony conviction finding pursuant to section 1385.

3.   In the body of this opinion, we have reversed the sentence because the trial court exceeded the allowable scope of its lawful sentencing discretion in striking two of the three prior serious felony findings.   We do not know what will happen on remand.   So as to avoid further errors on remand in the event there is a conviction, we address additional areas where mistakes occurred in the present case for the purpose of avoiding their reoccurrence.   To begin with, on November 2, 1994, when defendant was permitted, over the prosecutor's objection to enter into a plea bargain expressly conditioned on an eight year sentence, he was misadvised as to the potential maximum sentence.   Defendant was told that he faced a possible sentence of “31 years to life.”   Actually, because the two cocaine incidents occurred on separate occasions, defendant's possible exposure was as follows.   As to count 2, defendant faced a potential sentence of 31 years to life.   The potential count 2 sentence is calculated as follows:  25 years to life pursuant to section 667, subdivision (e)(2)(A)(ii);  plus 2 years because of the on-bail allegation (§ 12022.1);  and an additional possible 4 years as a result of his service of 4 separate prior prison terms.  (§ 667.5, subd. (b).)  As to count one, because the incidents charged in the two separate counts arose on separate days and occasions at different locations, pursuant to section 667, subdivisions (c)(6) and (e)(2)(B), defendant must receive a separate consecutive sentence of 25 years to life at the very least.  (Cf. People v. McKee (1995) 36 Cal.App.4th 540, 545–548, 42 Cal.Rptr.2d 707.)   We do not address the question of the effect of the special allegations on the count 1 sentence.   We merely note the count 1 sentence, which would be 25 years to life at the minimum, must run consecutively to count 1.Further, on November 16, 1994, at the time of sentencing, the trial court chose to strike the prior prison term enhancements “for purposes of sentencing.”   A trial judge has discretion to strike a prior prison term finding pursuant to section 1170.1, subdivision (h).   However, a court may only strike a section 667.5, subdivision (b) prior prison term enhancement pursuant to section 1170.1, subdivision (h), “if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”   (People v. Jordan (1986) 42 Cal.3d 308, 318, 228 Cal.Rptr. 197, 721 P.2d 79;  People v. Savedra (1993) 15 Cal.App.4th 738, 747, 19 Cal.Rptr.2d 115;  People v. Alexander (1992) 8 Cal.App.4th 602, 605–606, 10 Cal.Rptr.2d 450;  People v. Irvin (1991) 230 Cal.App.3d 180, 190, 281 Cal.Rptr. 195;  People v. Johnson (1979) 95 Cal.App.3d 352, 355–359, 157 Cal.Rptr. 150.)   In the present case, no reasons were stated for striking the prior prison term enhancements.   Section 1170.1, subdivision (h) requires that mitigating circumstances be set forth before a section 667.5, subdivision (b) enhancement may be stricken.   The trial court stated there were no mitigating circumstances present.   The probation officer also indicated there were no mitigating circumstances present.   On remand, in the event of a conviction, if a decision is made to strike any or all the prior prison term enhancements, legitimate mitigating circumstances should be recited on the record.Finally, defendant was credited with one day too many of presentence credits.   In calculating the amount of presentence conduct credits pursuant to section 4019, the days of actual physical confinement are divided by four.   Without consideration of fractions after the division by four, that number is multiplied by two.  (People v. Fry (1993) 19 Cal.App.4th 1334, 1340–1341, 24 Cal.Rptr.2d 43;  People v. Smith (1989) 211 Cal.App.3d 523, 527, 259 Cal.Rptr. 515.)   In the present case, given the fact defendant had been in custody for 198 days prior to the imposition of judgment, the grant of 99 days of conduct credit exceeded the amount of the correct award by 1 day.

4.   Section 1385 provides:  “(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.  [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”   Because of our resolution of this appeal on abuse of discretion grounds, we need not address the question as to whether section 1385 permits a judge to strike a prior serious felony conviction finding.

5.   The California Supreme Court had repeatedly emphasized that the determination as to what charges to file is a prosecutorial decision.   (See Davis v. Municipal Court (1988) 46 Cal.3d 64, 82–83, 249 Cal.Rptr. 300, 757 P.2d 11;  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65, 113 Cal.Rptr. 21, 520 P.2d 405;  People v. Navarro (1972) 7 Cal.3d 248, 258–260, 102 Cal.Rptr. 137, 497 P.2d 481;  Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124–128, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   In People v. Adams (1974) 43 Cal.App.3d 697, 706–707, 117 Cal.Rptr. 905, the defendant argued that the grant of discretion to file a receiving stolen property charge as a felony to the prosecution violated the doctrine of separation of powers.  (Cal. Const., art. III, § 3, art. VI, § 1;  cf. Davis v. Municipal Court, supra, 46 Cal.3d at pp. 82–83, 249 Cal.Rptr. 300, 757 P.2d 11.)   The Adams court rejected this argument and noted:  “In the case before us the statute deals with the initial determination of the charge to be filed, a decision which, in its nature, occurs before an accusatory pleading is filed and thus before the jurisdiction of a court is invoked and a judicial proceeding initiated.   It involves a purely prosecutorial function and does not condition judicial power in any way.   The function thereby conferred relates only to what is clearly the province historically of the public prosecutor, i.e., the discretion whether or not to prosecute.  [Citations.]  The action of a district attorney in filing an information is not in any way an exercise of a judicial power or function.”  (People v. Adams, supra, 43 Cal.App.3d at p. 707, 117 Cal.Rptr. 905.)

TURNER, Presiding Justice.

GRIGNON and GODOY PEREZ, JJ., concur.

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