P. v. Ziegman

Filed 4/17/07 P. v. Ziegman CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed in part; reversed in part with directions.

Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Respondent.

The People (appellants or the People) appeal the concurrent prison sentences of Timothy Sean Ziegman (defendant) as inconsistent with the letter and spirit of the Three Strikes law and request reversal and remand for resentencing. In addition, the People argue that the trial court unlawfully dismissed one of defendants prior strike convictions. Acknowledging that concurrent sentences are unlawful under the California Supreme Courts ruling in People v. Casper,[1] defendant agrees that the case must be remanded for resentencing, but only so that the court can clarify its intent in light of Casper. Defendant maintains that the prior conviction was properly dismissed pursuant to the requirements of Penal Code[2] section 1385. We will remand, with instructions, for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Defendant was arrested on November 8, 2005, in possession of various items of stolen property: a set of keys to a new Toyota, a cell phone, a computer organizer with a credit card inside, and a manila envelope. An Information filed February 23, 2006, in case RIF126964 (the RIF case), charged defendant with receipt of stolen property ( 496 subd. (a), a felony). The Information alleged that he had served a prior prison term within five years of the new offense ( 667.5 subd. (b)), and had been convicted of a prior serious or violent felony or strike. ( 459, first degree burglary; 667, subds. (c) & (e)(1); 1170.12 subd. (c)(1).) At the time of the November arrest, defendant was on parole for a 2004 felony ( 591; telephone/electrical line injury) in which he had received a 16-month prison sentence. The newest offense represented his third parole violation in that case.

One day after the Information in the RIF case was filed, on February 24, 2006, Riverside County Sheriffs Deputies at Southwest Detention Center discovered defendant was brewing pruno in a plastic bag concealed in a box in his cell. On March 8, 2006, appellants filed a Complaint in case SWF015623 (the SWF case) charging defendant with possession of a controlled substance in a penal institution. ( 4573.5, a felony.) The Complaint in the SWF case alleged the same priors alleged in the Information in the RIF case. Mandatory settlement conferences for the two cases were set for March 29, 2006. On March 29 the court made defendant a settlement offer that included dismissing the strike allegation as to the SWF case, dismissing a pending misdemeanor drug case, and sentencing defendant to concurrent terms for a total of five years. Defendant requested time to consider the offer and the matters were continued to April 4.

On April 4, 2006, in a plea to the court, appellant admitted the felonies and all allegations in each case. In accordance with its offer of March 29, the court accepted the pleas. Because there had been no probation report and because they had not had a chance to argue against the plan, the People objected to the courts intention to dismiss the strike.

On May 10, 2006, the date the settlement conferences were finally held, the probation department filed reports for each case. The reports documented defendants criminal history. His record began in March 1993 with a juvenile drug offense and included misdemeanor burglary and drug offenses on the same date in December 1995; a November 1996 felony burglary; September 2001 charges of driving an unregistered, uninsured vehicle in the diamond lane without a drivers license, and failing to appear with regard to those offenses; a March 2004 felony telephone line injury; and the April 2006 receipt of stolen property. Including the present offense, in 13 years, defendant had violated probation or had had parole revoked or suspended a total of five times.

As aggravating sentencing factors, the probation reports noted that defendants prior convictions were of increasing seriousness, that he had been on parole or in custody when the current crimes were committed, and that his performance on parole had been unsatisfactory. In addition, the manner in which the pruno crime was carried out indicated planning. The reports noted no mitigating factors and concluded that defendant had demonstrated a propensity for recidivism as well as a lack of respect and blatant disregard for the law. The probation officer recommended a state prison sentence in both matters.

At the May 10 settlement conference, the court indicated that it had received and considered the probation reports. The district attorney argued at some length that in view of the aggravating factors enumerated in the reports and the lack of mitigating factors, defendant should receive the upper term for each of the two separate offenses. Under section 667, subdivision (c) and People v. Casper, said the district attorney, the terms must run consecutively. In addition, in view of defendants record, the nature and circumstances of the present felony, and his background and character, he did not fall outside the spirit of the Three Strikes law and did not merit generosity from the court.

For the receipt of stolen property conviction (the RIF case) the court sentenced defendant to the midterm of two years, doubled because of the prior strike, plus one year for the prison prior. Over the Peoples objection, the court exercised its discretion under section 1385 to dismiss the strike allegation for the SWF case and sentenced defendant to the midterm of two years, plus one year for the prior. The court specified that the three-year sentence in the SWF case was to be served concurrently with the five-year sentence in the RIF case. The court explained its reasoning as follows: I am striking the strike because I do believe its an appropriate sentence. I do believe in the total circumstances that he does fall within the purview of Williams and its progeny in that this offense was a total commitment and total prejudice to the defendant and by virtue of entering a plea in this early stage in the proceeding, its an appropriate sentence. [] This man is not a person you would ask or allow your daughter to take to the prom or someone that you would want to have in an elected office. But this is . . . an appropriate punishment for the entire scheme of three strikes. . . .

DISCUSSION

A. Section 667 and People v. Casper

In People v. Casper, supra, 33 Cal.4th 38, after examining the language of section 667, subdivision (c), the California Supreme Court held that consecutive sentences are required for all current felony convictions, regardless of whether a strike allegation attaches to them, if the crimes did not arise on the same occasion or under the same set of operative facts. (Id. at p. 43.) Reaching a different conclusion, explained the majority, would distort the statutory language, eviscerate the three strikes law, and return to trial judges a discretion in sentencing that both the Legislature and the electorate sought to severely curtail. (Id. at pp. 43-44, fn. omitted.)

Here, defendants two admitted felonies receipt of stolen property and possession of a controlled substance in jail were committed on separate occasions and under different sets of operative facts. Although his prior strike was alleged and admitted as to both crimes, it was dismissed as to only one. Therefore, under Casper, the sentences the court imposed were unauthorized insofar as they were concurrent. Unless otherwise modified, they must be changed to run consecutively.

In most cases where the trial court imposed an unauthorized sentence following a plea bargain, we would either exercise our power to modify the judgment ourselves or remand the case with directions for the court to impose the authorized sentence or permit the defendant to withdraw his plea. ( 1260 & 1192.5; People v. Jackson(1981) 121 Cal.App.3d 862, 869.)

In this case, however, simply modifying the judgment ourselves would be inappropriate because the trial court appears to have made its direct plea offer to defendant under the mistaken impression that dismissing the prior strike as to only one offense would not impede its intention to limit defendants sentence to five years. It is not our place to substitute [our] judgment for that of the trier of fact with respect to discretionary sentencing decisions. (People v. Lawley (2002) 27 Cal.4th 102, 172; People v. Hines (1997) 15 Cal.4th 997, 1080.) Similarly, we cannot tell from the record whether defendant was induced to plead by a promise that his sentence would be no more than five years. (See People v. Hoffard (1995) 10 Cal.4th 1170, 1184, fn 12 [Pleas not coming within section 1192.5 may present a danger of involuntary, unintelligent, or inaccurate pleading. These pleas may have been at least implicitly negotiated, as when the court provides the defense with an indicated sentence, and may present the same dangers of false pleading as explicit plea bargains reached under section 1192.5].) Thus we will remand the case to the trial court for it to exercise its discretion so as to reach a legal sentence or permit defendant to withdraw his plea.

On remand, the court may decide not to change its decisions to dismiss the prior strike as to one offense and let it stand as to the other. If so, and if defendant does not wish to accept the resulting statutorily authorized (i.e. consecutive, eight year total) sentence, the court will need to offer defendant the opportunity to withdraw his plea.[3] (People v. Jackson, supra, 121 Cal.App.3d at p. 869.) Or the court may exercise its discretion under section 1385, in light of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531 (Romero) and People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), to dismiss the prior strike with regard to both convictions so that the recalculated terms can run concurrently without violating Casper.

If the court decides to dismiss any prior strikes it must put on the record, in the minutes, a statement of reasons supporting the decision.

B. Section 1385 Discretion to Strike

A trial court has discretion to dismiss a prior strike conviction under section 1385, on its own motion in furtherance of justice, only if it finds, 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. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at pp. 530-531.) We review the exercise of this discretion for abuse of discretion. Our review is deferential, not de novo; the issue is whether the decision falls outside the bounds of reason. (Williams, supra, 17 Cal.4th at p. 162.) A trial court abuses its discretion if it dismisses a sentencing allegation solely to accommodate judicial convenience, or because of court congestion, or out of personal antipathy for the effect the Three Strikes law would have on the defendant, or simply because a defendant pleads guilty. (Id. at p. 159.)

To facilitate appellate review, a trial court dismissing an allegation must set forth its reasons for the dismissal in an order entered upon the minutes. (Williams, supra, 13 Cal.4th at p. 159.) 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 reporters transcript may show the trial courts motivation; the minutes must reflect the reason so that all may know why this great power was exercised. (Ibid., citing Romero, supra, 13 Cal.4th at pp. 530-531, italics original in Romero.) A ruling unaccompanied by reasons set forth in an order entered upon the minutes is ineffective. (Williams, at p. 162.)

As defendant acknowledges, the minutes in this case contain no statement of reasons supporting the trial courts dismissal of the strike allegation in the SWF case. Thus, at this point, the dismissal is ineffective. (Williams, supra, 13 Cal.4th at p. 162.)

We do note that the trial court indicated it had read and considered the probation report. And the reporters transcript reflects, if somewhat obscurely, the courts motivation and its intention to limit his term of confinement to five years. The court apparently believed defendant fell outside the spirit of the Three Strikes law because this case was a total commitment and total prejudice to the defendant who had cooperated by pleading early in the case in response to its offer. The courts remarks that defendant was not a person one would want to take a daughter to the prom or to hold elective office indicate that it was considering his character as well as the nature of his crimes. Without a full statement of its reasoning properly in the record, however, we cannot determine whether it abused its discretion by striking defendants prior strike.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions as follows:

1. The court is to exercise its sentencing discretion in cases RIF126964 and SWF015623 so as to reach a legal sentence.

2. The court is to enter upon the minutes a statement of reasons for any decision to dismiss a prior strike conviction under section 1385. The statement should reflect the courts consideration of the nature and circumstances of defendants prior and current felony convictions, and the particulars of his background, character, and prospects. The statement should support any conclusion that defendant falls outside the spirit of the Three Strikes law, in whole or in part, such that he should be treated as though he had not previously been convicted of one or more serious and/or violent felonies in the past. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at pp. 530-531.)

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ KING

J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

[1] People v. Casper (2004) 33 Cal.4th 38 (Casper).

[2] All further statutory references will be to the Penal Code.

[3] We are aware that appellant did not make an illegal plea argument either in the trial court or on appeal but we note the possibility of a plea withdrawal as one alternative.