P. v. Alvarado

Filed 6/26/08 P. v. Alvarado CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Brian Yep, Judge. Reversed in part, affirmed in part, and remanded.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Albert Bugsy Alvarado appeals from the judgment entered upon his convictions by jury of second degree robbery (Pen. Code, 211, count 1)[1]possession of a firearm by a felon ( 12021, subd. (a), count 2), and possession of ammunition ( 12316, subd. (b)(1), count 3). In connection with count 1, the jury found to be true the firearm-use allegation within the meaning of section 12022.53, subdivision (b). The trial court found to be true the allegation that defendant had suffered two prior felony convictions within the meaning of sections 1170, subdivisions (a) through (d) and 667, subdivisions (a) and (b) through (i). After denying defendants Romero[2]motion seeking a dismissal of one or both of his prior felony strike convictions, the trial court sentenced him on count 1 to 25 years to life plus 10 years for the firearm-use enhancement, plus five years for each of the two prior convictions under section 667, subdivision (a). It stayed sentence on counts 2 and 3 pursuant to section 654. Defendant contends that the trial court erred in denying his Romero motion because it did not exercise discretion, mistakenly believing that all of his current convictions were strikes.

We vacate defendants sentence, remand for resentencing, and otherwise affirm.

FACTUAL BACKGROUND

On April 30, 2006, at approximately 4:30 p.m., defendant entered the T-Mobile store, on Tenth Street West, in the City of Lancaster. A T-Mobile employee, Cesar Marolla (Marolla), approached defendant and asked if he could be of assistance. Defendant pulled a handgun on Marolla and demanded money.

Marolla tried to open the cash register, but because he was nervous entered the wrong code, and it would not open. Defendant told him, Mother-fucker, open up, or Ill shoot you, and then started counting down from five. Finally, Marolla was able to open the cash register and give the contents to defendant. Defendant grabbed the money, ran out of the store and entered a parked, silver Ford Ranger and sped away. Marolla activated the silent alarm.

On May 2, 2006, based upon the description of defendant given by Marolla to responding deputy sheriffs and the license number of the Ford Ranger provided by a bystander, defendant was apprehended. At the Lancaster station, when shown a photograph depicting him and Marolla at the counter in the T-Mobile store, defendant said, Thats me. You got me. I did it. I needed the cash. He then described the robbery.

Defendant testified at trial that he did not commit the robbery and never admitted doing so to the officers. He claimed that at the time of the robbery, he was at his sisters house in the desert.

DISCUSSION

The jury found defendant guilty of second degree robbery, possession of a firearm by a felon, and possession of ammunition. The trial court found that defendant had suffered two prior felony-strike convictions.

Before sentencing, defense counsel made a Romero motion under section 1385, seeking to dismiss one or both of his felony strike prior convictions on the grounds that: (1) they were stale, having occurred 11 years earlier; (2) they were both close in time, as part of one aberrant period of behavior; (3) they arose out of the same case number; (4) defendants other criminal convictions were misdemeanors;[3](5) his sentence would still exceed 20 years if one of the felony strikes was dismissed, and; (6) because at his age, imposing both strikes would amount to a life sentence.

In denying the motion, the trial court stated: [A]s I told you before the trial that if you were convicted, I wasnt going to have any choice in how I sentenced you, the law pretty much ties my hands. It continued, [E]ven if I struck a strike, hes  . . . picked up three in this case. So based on the arguments ‑‑ again, the court feels it has no discretion in this regard ‑‑ court will deny the defense Romero motion and will not strike any of the previous two strikes. Again, not that it would matter because the counts ‑‑ all of the three counts here are all strikes.

Defendant contends that the trial court abused its discretion in denying his Romero motion. He argues that it failed to exercise discretion under section 1385 because it was operating under the mistaken belief that all three of his current convictions were strikes within the Three Strikes law. We agree that the trial court was operating under a misconception as to its discretion, and this matter must therefore be remanded for resentencing.

Section 1385 provides in part: The judge . . . 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. ( 1385, subd. (a).) Romero held that trial courts have authority to strike a prior conviction pursuant to section 1385.

In deciding whether to strike a prior conviction in furtherance of justice under section 1385, the trial court must take into account the defendants background, the nature of his current offense, and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) It requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People . . . . At the very least, the reason for dismissal must be that which would motivate a reasonable judge. [Citations.] [Citations.] (Romero, supra, at pp. 530-531.) [T]he 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 schemes 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.) Where the record indicates that a trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the Three Strikes law, we will affirm the trial courts ruling, even if we might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

The record here does not indicate whether the trial court considered the nature and circumstances of defendants current offenses, his prior convictions, and his background, character, prospects, and other individualized considerations that our Supreme Court has said must be considered in ruling on a Romero motion. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at p. 531.) Further, as the People concede, it does appear that the trial court may have misunderstood the extent of the discretion it had under Romero. The trial court stated that it [had no] choice in how [it] sentenced [defendant] and that the law pretty much tie[d] [its] hands. It went still further, stating that even if [it] struck a strike, . . . [defendant] picked up three in this case. So . . . the court feels it has no discretion in this regard. If it struck a strike, it would not matter because all of the three counts here are all strikes.

These comments indicate that the trial court was operating under at least two fundamental misconceptions. First, it inaccurately believed that each of the three current convictions is a felony strike, when that is true only of the robbery conviction. ( 667.5, subd. (c)(9) [robbery is violent felony]; 1192.7, subdivision (c)(19) [robbery is serious felony]; see also 667.5, subds. (c)(1)-(23) [felon in possession of firearm and possession of ammunition not among listed violent felonies]; 1192, subds. (c)(1)-(42) [felon in possession and possession of ammunition not among listed serious felonies].)

Second, the trial court appears to have believed that current felony convictions count as strikes in sentencing in the current case, leading it to conclude that striking a prior strike in this case would not matter because all of the three counts here are all strikes. To the contrary, only strikes previously suffered may be considered strikes in the current proceeding. ( 667, subd. (c) [applying Three Strikes law to prior [violent or serious] felony convictions].) Consequently, even if defendants current convictions were all felony strikes, striking one of his prior felony strikes would reduce his sentence. ( 667, subd. (e)(1) [one prior felony punishment is twice that of the current felony];  667, subd. (e)(2)(A) [two or more prior felony punishment is life with minimum term of triple that of the current felony or 25 years].) It is unclear how the trial court would have ruled on the Romero motion had it known that striking one of defendants prior felony strikes would reduce his sentence.

Because the trial court apparently believed that it had no discretion to dismiss any of defendants prior felony strike convictions, its ruling denying the motion was not an exercise of discretion. (People v. Philpot (2004) 122 Cal.App.4th 893, 905 [abuse of discretion to fail to strike a prior felony conviction where the trial court is not aware of its discretion to dismiss]; see also People v. Beasley (1970) 5 Cal.App.3d 617, 633; People v. Orabuena (2004) 116 Cal.App.4th 84, 99-100 [When a trial courts failure to exercise its section 1385 discretion to dismiss or strike is based on a mistaken belief regarding its authority to do so, the appropriate relief on appeal is to remand so that the trial court may exercise its discretion. . . . This matter must therefore be remanded for resentencing.[4]

DISPOSITION

The sentence is vacated and the matter is remanded for the limited purpose of allowing the trial court to exercise discretion under Romero and for resentencing thereafter. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

CHAVEZ

We concur:

_________________________, P. J.

BOREN

_________________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

[3] The probation report outlined defendants criminal history as including the following convictions: (1) March 3, 1992, misdemeanor unlicensed driver, received one-year summary probation; (2) April 24, 1996, two counts of second degree robbery, sentenced to two years state prison; (3) May 5, 1999, possession of under one ounce of marijuana, fined; (4) August 24, 1999, misdemeanor driving on a suspended license, received two years summary probation, plus five days county jail; (5) February 14, 2000, misdemeanor improper display of license plate and false identity to police, received three years summary probation, a fine, and five days county jail; (6) November 4, 2003, misdemeanor driving with a suspended license, received two years summary probation, five days county jail; and (7) November 6, 2003, misdemeanor driving with suspended license, received three years summary probation, 30 days county jail.

[4] We express no opinion regarding the propriety of dismissing one or more of defendants felony strikes.