PEOPLE v. BARRON (1999)

Defendant, Oscar Barron, appeals from his conviction for possession of a telecommunication device with intent to avoid payment of toll charges.   (Pen.Code,1 § 502.7, subd. (b)(1).)   He was also found to have previously been convicted of two serious felonies. (§§ 667, subds.(b)-(i), 1170.12.)   The present appeal involves two contentions presented by defendant and three by the Attorney General.   Defendant argues that section 502.7, subdivision (b)(1) fails to provide adequate notice of what conduct constitutes a felony.   He further argues that he has been denied equal protection of the laws because section 502.8, which involves possession of telecommunications equipment, is merely a misdemeanor.   The Attorney General argues that the judgment must be modified to impose a fine pursuant to section 1202.45.   Further, the Attorney General argues that the abstract of judgment must be modified to correctly reflect the fines imposed.   Finally, the Attorney General argues that we should reverse the trial court's dismissal of one of defendant's prior serious felony convictions which was made without a statement of reasons being entered in the clerk's minutes as mandated by section 1385, subdivision (a).   In this vein, the Attorney General contends that an order striking a serious prior felony conviction without a statement of reasons is a legally unauthorized sentence.   In the published portion of this opinion, we address the question of whether a trial court's failure to comply with the mandatory provisions of section 1385, subdivision (a) requiring a statement of reasons is a legally unauthorized sentence which may be raised for the first time by the prosecution in an appeal by a defendant.

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The Attorney General argues that the trial court failed to comply with the express provisions of section 1385, subdivision (a) ² which require a statement of reasons in the clerk's minutes to support an order dismissing or striking a prior serious felony conviction.   The trial court dismissed one of defendant's two prior serious felony convictions.   However, the trial court did not insert in the clerk's minutes the reasons for dismissing one of the two prior serious felony conviction allegations.   It is this failure to have set forth in writing in the clerk's minutes the reasons for the dismissal of one of the two prior serious felony convictions that the Attorney General contends was error.

At the probation and sentence hearing, the parties presented lengthy arguments concerning whether defendant's prior serious felony convictions should be dismissed pursuant to section 1385, subdivision (a).   After the issue was submitted, the trial court stated, “The motion pursuant to [section] 1385 as to one strike is granted.” ³  The trial court orally enunciated no other reasons for striking one of the prior serious felony conviction findings.   The trial court then proceeded to find that the aggravating circumstances outweighed the mitigating factors and imposed twice the high term of three years for a total sentence of six years.   The clerk's minutes do not reflect a statement of reasons as to why the prior serious felony conviction was dismissed.   All the clerk's minutes state is as follows, “Defense motion to dismiss one of the strike priors alleged pursuant to [Penal Code section] 1385 [ ] is heard, argued and granted over people's objection.”

The power to strike pursuant to section 1385, subdivision (a) was described by the California Supreme Court in the decision of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531, 53 Cal.Rptr.2d 789, 917 P.2d 628, a case in which the prosecution filed a mandate petition, as follows:  “ ‘From the case law, several general principles emerge.   Paramount among them is the rule “that the language of [section 1385], ‘in furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.  [Citations.]”  [Citations.]   At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.”  [Citations.]'  (People v. Orin [ (1975) ] 13 Cal.3d [937,] 945 [120 Cal.Rptr. 65, 533 P.2d 193].)  ‘Courts have recognized that society, represented by the People, has a legitimate interest in “the fair prosecution of crimes properly alleged.”  [Citation.]  “ ‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’  [Citations.]” '  (Id. at p. 947 [120 Cal.Rptr. 65, 533 P.2d 193].)”  (Emphasis omitted.)   The factors to be considered in exercising discretion have been described by the California Supreme Court in a case where the prosecution appealed as follows:  “We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385 [, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”  (People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429.)

 The Attorney General, who has not appealed nor sought relief by way of a mandate petition from the order striking or dismissing one of the two prior first degree burglary convictions, does not argue that the decision to strike or dismiss was an abuse of discretion;  rather, the argument presented by the prosecution on appeal is that the trial court failed to set forth its reasons for the sentencing decision in the clerk's minutes as required by section 1385, subdivision (a).   Therefore, the Attorney General argues that we should reverse the sentence and remand for resentencing where defendant would be subject to a possible 25-year-to-life term in the state prison unless the trial court struck a prior serious felony conviction and complied with the statement of reasons requirement of section 1385, subdivision (a).   No doubt, the Attorney General is correct, judicial error occurred-the minutes do not contain the mandatory statement of reasons for the action taken pursuant to section 1385, subdivision (a).   Moreover, there is no oral order of the court directing the court clerk to set forth reasons for the decision to strike one of the two prior serious felony convictions.   The California Supreme Court has repeatedly emphasized the mandatory nature of the duty of the trial court to insure the clerk's minutes contain the reasons for the exercise of discretion dismissing an allegation or charge presented by the prosecutor.   (People v. Williams, supra, 17 Cal.4th at p. 161, 69 Cal.Rptr.2d 917, 948 P.2d 429 [“If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.”];  People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531, 53 Cal.Rptr.2d 789, 917 P.2d 628 [“Section 1385 anticipates, and facilitates, appellate review with the requirement that ‘[t]he reasons for the dismissal must be set forth in an order entered upon the minutes.’ (§ 1385[, subd.] (a).)  ‘The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement.   It is not enough that on review the reporter's transcript may show the trial court's motivation;  the minutes must reflect the reason “so that all may know why this great power was exercised.” ’  (People v. Beasley (1970) 5 Cal.App.3d 617, 637 [85 Cal.Rptr. 501];  see also People v. Orin, supra, 13 Cal.3d at p. 944 [120 Cal.Rptr. 65, 533 P.2d 193] [‘It is settled law that this provision is mandatory and not merely directory.’].)”].) (Emphasis omitted.)   The Attorney General is absolutely correct, trial judges who exercise the power to strike a prior serious felony conviction have a mandatory duty to insure the minutes reflect the reasons for such an exercise of judicial discretion.

The Attorney General seizes on the language adverting to the mandatory nature of the statement of reasons requirement and argues that the issue may be raised in the present case even though no notice of appeal or mandate petition has been filed on behalf of the prosecution.   Defendant argues though, the prosecution can only raise jurisdictional sentencing errors on his appeal.   Defendant contends that the failure to state in the minutes supporting reasons for what is a jurisdictionally authorized sentencing decision, to strike a prior felony conviction, is not a legally unauthorized sentence;  hence, defendant reasons that this issue cannot be raised in the present appeal which was commenced solely by him.   We agree with defendant's analysis.

Before identifying the relevant authority which defines a jurisdictional sentencing error and the right of the Attorney General to raise such an issue as part of a defendant's appeal, we note that many of the following decisions often discuss this question in terms of waiver.   Many of the following cases we will digest involve situations where a prosecutor in the trial court failed to properly argue to a trial judge to impose a jurisdictionally mandated sentence.   Many of the cases we will cite involve, directly or implicitly, issues of waiver but generally the appellate courts in these matters have allowed the Attorney General under the enumerated circumstances to raise contentions for the first time in the Supreme Court or the Court of Appeal in connection with a defendant's appeal.   In the present case, defendant does not assert that the non-compliance with the statement of reasons requirement of section 1385, subdivision (a) has been waived by the prosecution.   No contemporaneous objection can normally be imposed to the failure to state reasons in the clerk's minutes because they often are prepared later in a court day after the parties have departed.   Defendant argues that the problem with the argument of the Attorney General is that no appeal has been taken nor mandate petition filed on behalf of the prosecution and the issue of non-compliance with the statement of reasons provision of section 1385, subdivision (a) cannot be raised now in these proceedings.

A typical example of a jurisdictional sentencing error occurs when a trial judge fails to impose a mandatory enhancement or other sentence.   In People v. Dotson (1997) 16 Cal.4th 547, 554, footnote 6, 66 Cal.Rptr.2d 423, 941 P.2d 56, the prosecutor in the trial court argued that a sentence of 26 years to life should be imposed.   On appeal, the Attorney General argued that the correct sentence was 36 years to life because two “non-strikeable” section 667, subdivision (a) five-year prior serious felony convictions had not been imposed by the trial judge.   The California Supreme Court allowed the Attorney General to present this new contention in the defendant's appeal because the trial judge imposed a legally unauthorized sentence and held:  “A claim that a sentence is unauthorized, however, may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.  [Citations.]”  (Ibid.) This is the typical scenario where the unauthorized sentence issue arises.

More broadly, the nature and concept of a jurisdictional sentencing error was described by the California Supreme Court in People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 as follows:  “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.”   The reasoning is that “such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.  [Citation.]  As defendant suggests, legal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement.”  (Ibid., fn. omitted.)   In People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802, the California Supreme Court described jurisdictional sentencing error as follows:  “Whatever precise meaning the ‘unauthorized sentence’ and ‘excess of jurisdiction’ concepts may have in determining whether claims are waiveable on appeal or cognizable on habeas corpus, the authorities cited by defendant do not support her position.   These cases generally involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.  (In re Ricky H. [ (1981) ] 30 Cal.3d 176, 190-19[2] [178 Cal.Rptr. 324, 636 P.2d 13] [failure to characterize offense and apply permissible term of confinement];  In re Sandel [ (1966) ] 64 Cal.2d 412, 418 [50 Cal.Rptr. 462, 412 P.2d 806] [violation of statute mandating consecutive terms for escape];  People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [281 Cal.Rptr. 195] [failure to strike or impose enhancement];  People v. Skeirik (1991) 229 Cal.App.3d 444, 468 [280 Cal.Rptr. 175] [erroneous imposition of determinate terms];  People v. Baylor (1989) 207 Cal.App.3d 232, 235-236 [255 Cal.Rptr. 172] [erroneous stay of sentence];  People v. Levell (1988) 201 Cal.App.3d 749, 751 [247 Cal.Rptr. 489] [applicability of enhancement];  People v. White (1981) 117 Cal.App.3d 270, 278-279 [172 Cal.Rptr. 612] [disapproved on another point in People v. Scott, supra, 9 Cal.4th at p. 353, fn. 16, 36 Cal.Rptr.2d 627, 885 P.2d 1040] [alleged dual use of aggravating fact and nonuse of mitigating fact];  People v. Salazar (1980) 108 Cal.App.3d 992, 1000-1001 & fn. 4 [167 Cal.Rptr. 38] [failure to state reasons for prison term].)   Implicit in each of these decisions is the reviewing court's unwillingness to ignore clear and correctable legal error, particularly where the defendant might otherwise spend too much or too little time in custody.  (See § 1259.)”   The issue raised by the Attorney General in this case does not involve the length of the sentence nor is any argument made the trial court abused its discretion-the issue involves the failure to state reasons.

 Since the 1995 decision in People v. Scott, supra, 9 Cal.4th at pages 348-358, 36 Cal.Rptr.2d 627, 885 P.2d 1040, California courts have held that the failure to correctly state reasons for a sentence choice, when required to do so by statute or court rule, (§ 1170, subd. (c);  Cal. Rules of Court, rule 401 et seq.) is not a jurisdictional error.  (Id. at p. 355, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [failure to object that reasons used for sentencing were “inapplicable, duplicative, and improperly weighed” waived because no jurisdictional error occurred];  People v. Middleton (1997) 52 Cal.App.4th 19, 36, 60 Cal.Rptr.2d 366 [citing Scott, use of improper fact to impose the upper term];  People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311, 28 Cal.Rptr.2d 172 [failing to state reasons for upper term as required by § 1170, subd. (c) ⁴ ];  People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124, 24 Cal.Rptr.2d 129 [failing to state reasons for consecutive sentences as required by section 1170, subd. (c) ].) Other post-Scott decisions have required an objection to be interposed in the trial court for the failure to state any or appropriate reasons for a sentence choice without specifically discussing the non-jurisdictional nature of the error.   (People v. de Soto (1997) 54 Cal.App.4th 1, 7-8, 62 Cal.Rptr.2d 427, [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing];  People v. Kelley (1997) 52 Cal.App.4th 568, 581-582, 60 Cal.Rptr.2d 653 [failure to consider mitigating factors];  People v. Minder (1996) 46 Cal.App.4th 1784, 1791-1792, 54 Cal.Rptr.2d 555 [failure to comply with requirement in rule 433(b) of the Cal. Rules of Court to state reasons for imposing upper term when imposition of sentence is suspended];  People v. Erdelen (1996) 46 Cal.App.4th 86, 91, 53 Cal.Rptr.2d 553 [improper dual use of facts to impose upper term waived];  People v. Zuniga (1996) 46 Cal.App.4th 81, 83, 53 Cal.Rptr.2d 557 [failure to state any reason for sentence choices in violation of § 1170, subd. (c) ];  People v. Dancer (1996) 45 Cal.App.4th 1677, 1693, 53 Cal.Rptr.2d 282 disapproved on another point in People v. Hammon (1997) 15 Cal.4th 1117, 1123, 65 Cal.Rptr.2d 1, 938 P.2d 986 [improper use of particularly vulnerable aggravating factor to impose upper term];  People v. Douglas (1995) 36 Cal.App.4th 1681, 1691, 43 Cal.Rptr.2d 129 [finding application of waiver rule to improper use of enhancement to impose upper term and reaching the merits of the issue].)   The common direct or implicit theme of the decisions discussed in this paragraph is that the failure to state reasons for a sentence choice is not a jurisdictional error.

 For these combined reasons, we conclude that the failure to state reasons for striking a prior serious felony conviction is not a legally unauthorized sentence or jurisdictional error;  hence, the Attorney General cannot raise this issue as part of defendant's appeal.   Section 1385, subdivisions (a) grants trial judges the jurisdiction to strike a serious felony conviction.   This is not a case where the sentence “could not lawfully be imposed under any circumstance․”  (People v. Scott, supra, 9 Cal.4th at p. 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   This case does not involve a violation of a “mandatory provisions governing the length of confinement.”   (Ibid.) Moreover, the present case does not involve a “pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court.”  (People v. Welch, supra, 5 Cal.4th at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   In closely related contexts, involving statements of reasons for sentencing determinations, it is well established that the failure to set forth the justification for a sentence choice is not a jurisdictional error.   We conclude the same is true with the section 1385, subdivision (a) requirement that reasons be set forth in the clerk's minutes.   Therefore, since no jurisdictional error has occurred, the Attorney General may not raise the propriety of the order striking one of the two prior serious felony conviction findings as part of defendant's direct appeal.

 This is not to say the Attorney General is without any remedy.   The prosecution can challenge certain sentencing decisions, including the failure to comply with the statement of reasons requirement of section 1385, subdivision (a) by means of a mandate petition.  (E.g., People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532, 53 Cal.Rptr.2d 789, 917 P.2d 628 [clerk's minutes explain other matters but not the reasons for the dismissal];  People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1478, 70 Cal.Rptr.2d 180 [no statement of reasons at all provided].)   So long as issues of laches or prejudice are not controlling, the prosecution can file a mandate petition challenging inadequacy of the statement of reasons.   (Peterson v. Superior Court (1982) 31 Cal.3d 147, 163, 181 Cal.Rptr. 784, 642 P.2d 1305 [if delay in filing a mandate petition not unreasonable, appellate court will reach the merits];  Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359, 82 Cal.Rptr. 337, 461 P.2d 617 [discussion of elements of laches as applied to writ practice];  e.g., Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529-530, 255 Cal.Rptr. 13;  People v. Superior Court (Clements) (1988) 200 Cal.App.3d 491, 496-497, 246 Cal.Rptr. 122;  Rosso, Johnson, Rosso & Ebersold v. Superior Court (1987) 191 Cal.App.3d 1514, 1517, 237 Cal.Rptr. 242.)   Further, it would appear the failure to state reasons can be raised on an appeal pursuant to section 1238, subdivision (a)(10).

The judgment is modified to reflect the imposition of the $200 Penal Code section 1202.45 restitution fine discussed in the unpublished portion of this opinion.   Upon issuance of the remittitur and imposition of the additional fine, the superior court clerk is to issue an amended abstract of judgment which reflects both restitution fines and forward it to the Department of Corrections as discussed in the unpublished portion of this opinion.   The judgment is affirmed in all other respects.

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.

FOOTNOTE.   See footnote *, ante.

2.   Section 1385, subdivision (a) provides:  “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.”

3.   Because the issue has not been raised, we need not address the propriety of granting a defendant's request to dismiss or strike a prior conviction given the fact section 1385, subdivision (a) only permits such action on the court's own or prosecutor's motion.  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4, 188 Cal.Rptr. 115, 655 P.2d 317;  Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70, 187 P.2d 686, disapproved on another point in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139, 293 P.2d 449.)   Further, the prosecutor did not object to the paucity of reasons articulated for the decision to dismiss the prior serious felony conviction.

4.   Section 1170, subdivision (c) provides in relevant part, “The court shall state the reasons for its sentence choice on the record at the time of sentencing.”

TURNER, P.J.

GRIGNON, J., and ARMSTRONG, J., concur.