P. v. Zendejas

Filed 6/27/06 P. v. Zendejas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

The People appeal the sentence imposed on Anthony Michael Zendejas after his conviction for robbery and assault with a deadly weapon (Pen. Code, §§ 211, 245, subd. (a)(1)),[1] and a true finding of two prior convictions for serious or violent felonies qualifying as "strikes" under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) After trial, Zendejas brought a motion to dismiss his prior strike convictions. The trial court granted the motion in part, dismissed one of the strikes, and sentenced Zendejas as a two-strike offender. The People contend that the court failed to comply with section 1385, and abused its discretion in dismissing the strike. We reverse and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

In November 2002, Zendejas approached Edgar Medina and, at knifepoint, compelled Medina to get into the back seat of Zendejas's car. Zendejas drove Medina a short distance and stopped. A man got into the front passenger seat, and Zendejas got out and opened the back door of the car.

Zendejas pulled Medina out of the car and hit and kicked him in the face. Zendejas placed a knife to Medina's throat and demanded Medina's wallet and jewelry. When Zendejas ordered Medina to take off his rings, he cut Medina on his hand with the knife. Medina gave Zendejas his wallet, jewelry and car keys.

Medina ran away and flagged down a police officer. He was bleeding from his hand and nose and had a swollen eye. Medina identified Zendejas as his attacker from a photographic lineup.

Zendejas was arrested in 2004 and charged with robbery, assault with a deadly weapon, and kidnapping for purposes of robbery. (§ 209, subd. (b)(1).) It was alleged that Zendejas used a deadly or dangerous weapon in the robbery and kidnapping. (§ 12022, subd. (b)(1).) The information also alleged that Zendejas had two 1991 convictions for robbery within the meaning of the three strikes law and section 667, subdivision (a)(1), and had served two prison terms (§ 667.5, subd. (b)).

In a November 2004 trial, the jury convicted Zendejas of robbery and assault with a deadly weapon, and found a true allegation on the weapons enhancement. In a bifurcated trial, the court found true allegations regarding the 1991 offenses.

The People filed a sentencing memorandum requesting a third strike sentence of 58 years to life, consisting of consecutive terms of 25 years to life for each offense, plus a total of eight years for the enhancements. Zendejas filed a motion to dismiss both of the prior robbery convictions pursuant to section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

At the Romero hearing, the court stated: "I've been giving this matter some thought and understanding that the two prior convictions are old, but not that old. However, in looking at the sentence, in looking at what the court had done previously, it appears that, while it is two separate incidents, that it was not treated as though it was as serious as it may have sounded, and considering the fact that he is going to still get a substantial sentence in this matter, the court does not believe it is a third strike situation in this case so I'm going to strike one of the strikes." The trial court then dismissed one of the prior convictions. The minute order states: "The court indicates that it will strike one of the priors alleged under [the "Three Strikes" law] but will sentence the defendant to the high term as fully reflected in the notes of the official court reporter."

The court sentenced Zendejas to 19 years in state prison. The sentence consisted of the five-year upper term for the robbery (base term), doubled under the three strikes law, plus one year for the weapon enhancement, five years under section 667, subdivision (a)(1), one year for each of the prior prison terms under section 667.5, subdivision (b), and one year for the assault.

DISCUSSION

The People contend that the trial court erred by failing to set forth the reasons for its dismissal of the strike conviction in its minute order. We agree.

Section 1385, subdivision (a) provides that "[t]he 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." (Italics added.)

The statutory requirement of including the reasons for dismissal in the minutes is mandatory. (People v. Orin (1975) 13 Cal.3d 937, 943-944; People v. Humphrey (1997) 58 Cal.App.4th 809, 811-813.) It is not sufficient that "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. Superior Court (Romero), supra, 13 Cal.4th at p. 531, quoting Orin, at p. 944.) Undisputedly, the minute order in this case does not state any reason for the dismissal. It merely states that the "court indicates that it will strike one of the priors."

The People further contend that, even if the reasons given by the trial court at the hearing were part of the minutes, striking the prior conviction would have been an abuse of discretion. The People claim the trial court failed to consider the nature and circumstance of the current offenses committed by Zendejas, or his prior strike convictions and non-strike criminal history.

A trial court has discretion to dismiss a strike conviction in sentencing a defendant when it concludes that the defendant falls "outside the . . . spirit" of the three strikes law "in whole or in part." (People v. Williams (1998) 17 Cal.4th 148, 161; see also People v. Carmony (2004) 33 Cal.4th 367, 376-378.) Here, the trial court did not adequately express its reasons for dismissing the prior strike conviction. It found that the 1991 offenses did not justify a deviation from the sentencing norm based on their remoteness in time or occurrence as part of a single incident. Instead, the court found, but did not identify, a mitigating factor based on the lenient sentence imposed on Zendejas for the 1991 strike offenses.

We cannot conclude, however, that the court's ruling would have been an abuse of discretion regardless of the court's reasoning. The record shows that Zendejas was incarcerated or on parole or probation most of the time between 1991 and 2002. At the time of sentencing for the current offenses, he had four prior strike offenses involving violence and had a significant non-strike criminal history. Unquestionably, such facts would have been sufficient for the trial court to have denied the Romero motion. But, a dismissal based on the evidence before the court would not have been "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at pp. 376-378; People v. McGlothin (1998) 67 Cal.App.4th 468, 476-477.)

The People also assert that the trial court erred by refusing to consider a pending murder charge against Zendejas based on a killing that occurred two months before the current offenses. Zendejas was tried for murder in August 2004, but a hung jury resulted in a mistrial and the case remained pending at the time of the sentencing in the instant case.

The trial court did not consider the murder case because Zendejas "has not been convicted of anything yet, and I'm not going to worry about what happens in some other case right now." The People concede that the court was not required to consider the murder case as a material factor in its decision, but argue that the court erred by failing to even review the facts of the case. As the People argue, a trial court is not prevented from considering reliable factual information concerning additional criminal charges pending at the time of ruling on a Romero motion. (See Cal. Rules of Court, rule 4.411.5(a)(3) [probation report may consider charges that have not resulted in a conviction if supported "by facts concerning the arrest or charge"]; see also People v. Escobar (1953) 122 Cal.App.2d 15, 18 [probation report may mention arrests occurring subsequent to current charges].) But, the record does not establish that the trial court failed to review the facts of the murder case, or believed that it had no authority to consider those facts.

By remanding, we do not seek to determine what sentence the trial court should impose. We conclude only that the court must place the findings and conclusions that reflect its reasoning on the record and in the minutes of the court.

The judgment is reversed and remanded with directions to resentence Zendejas consistent with this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Alice E. Altoon, Judge

Superior Court County of Los Angeles

______________________________

Steve Cooley, District Attorney, Patrick D. Moran, Brentford J. Ferreira, Phyllis C. Asayama, Deputy District Attorneys, for Plaintiff and Appellant.

M. David Houchin for Defendant and Respondent.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Apartment Manager Lawyers.

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