P. v. Butler

Filed 4/30/07 P. v. Butler CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Sylvia L. Husing, Judge. (Retired judge of the San Bernardino Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.). Affirmed in part, reversed in part with directions.

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

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Respondent.

The People of the State of California appeal from a trial court order dismissing for sentencing purposes five prior prison term allegations within the meaning of Penal Code section 667.5, subdivision (b).^[1] The People argue the order is void because the trial court failed to set forth the reasons for the dismissals in its minutes as required by section 1385, subdivision (a). The People also contend the order should be reversed because the trial court abused its discretion by engaging in illegal plea bargaining. In addition, the People claim the trial court improperly applied sentence credits under section 4019.

Factual and procedural background

On or about March 22, 2005, defendant sold cocaine base to an undercover agent who was involved in a large scale operation in which undercover officers purchased narcotics from various drug dealers in a number of Riverside locations. Apparently, because of the nature of the undercover operation, defendant was not arrested immediately after the sale, and no charges were filed against him in connection with the sale until May 6, 2005. Prior to May 6, 2005, defendant was, however, arrested and charged in a separate matter for possession of cocaine and drug paraphernalia (case No. RIF122745 or the cocaine possession case). The record does not include information about the circumstances of this arrest. Defendant pled guilty in the cocaine possession case on April 26, 2005.

When new charges stemming from the sale of cocaine base were filed on May 6, 2005 (case No. RIF123418 or the cocaine sale case), defendant was already in state prison serving time in the cocaine possession case. Approximately one year later, on April 10, 2006, defendant also pled guilty in the cocaine sale case. At this time, the trial court decided to consider both cases as if they had been before the court at the same time. Immediately following his guilty plea in the cocaine sale case on April 10, 2006, the trial court re-sentenced defendant in the cocaine possession case to a term of one year and four months. The court then imposed a sentence of 11 years in the cocaine sale case, for a total aggregate term of 12 years and four months. The People now challenge this second guilty plea in the cocaine sale case, as well as the total sentence imposed in both cases. As a result, the charges and allegations in both of these cases are relevant to our analysis.

A. Cocaine Possession Case No. RIF122745

In a felony complaint filed April 5, 2005, the People alleged defendant possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a), a felony (Count 1), and possessed paraphernalia used for unlawfully injecting and smoking a controlled substance in violation of Health and Safety Code section 11364, a misdemeanor (Count 2). The People also alleged a total of five prior convictions. Four of these qualified as prior prison convictions within the meaning of section 667.5, subdivision (b). These included three prior convictions for possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), on or about May 28, 1991,^[2]July 31, 2000, and May 30, 2003, and one prior conviction for transporting or selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), on October 22, 1992. The fifth prior conviction on April 1, 1985, was for burglary and qualified as a strike pursuant to sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).

On April 26, 2005, defendant entered into a written plea agreement in which he pled guilty to cocaine possession (Count 1) and admitted two of the prior prison convictions for possession of a controlled substance from July 2000 and May 2003. Count 2 (misdemeanor possession of paraphernalia) and all of the other prior conviction allegations were dismissed. The agreed sentence was for five years in state prison -- the upper term of three years on Count 1, plus a one year enhancement for each of the two prior convictions pursuant to section 667.5, subdivision (b).

B. Cocaine Sale Case No. RIF123418

In a felony complaint filed May 6, 2005, the People alleged an unlawful sale of cocaine base on March 22, 2005, in violation of Health and Safety Code section 11352, subdivision (a), along with a prior sale within the meaning of Health and Safety code section 11370.2, subdivision (a). The felony complaint in this case also included the same prior conviction and prior prison term allegations that were previously asserted in the cocaine possession case (No. RIF122745). However, one new prior prison term allegation was added: theft with a prior from April 1, 1985, in violation of section 666, a felony, within the meaning of section 667.5, subdivision (b). A preliminary hearing was held in this case on December 13, 2005.

On April 10, 2006, defendant pled guilty to the sale of cocaine base and admitted all prior conviction and prior prison term allegations. The court imposed a combined total sentence for the two cases of 12 years and 4 months. In the cocaine sale case, the court imposed the statutory mid-term of 4 years and then doubled it pursuant to sections 667, subdivisions (c) and (e), and 1170.12, because of the prior strike conviction, to reach a total of 8 years. As outlined ante, the court previously imposed a five-year sentence in the cocaine possession case (No. RIF122745), but the court re-sentenced defendant at this time to a total of one year and four months, calculated by taking one-third the mid-term of two years (i.e., 8 months) and doubling it to 16 months because of the prior strike.^[3] The court then added a three-year enhancement pursuant to Health and Safety Code section 11370.2 based on the admission of a prior sales offense. All of the prior prison term allegations were stricken or dismissed, and no enhancements were imposed pursuant to section 667.5, subdivision (b).

Discussion

1.Basis for Appellate Review

Preliminarily, defendant argues the trial courts rationale for striking or dismissing the prior prison term allegations is discretionary and therefore not appealable pursuant to section 1238, subdivision (a)(10). In pertinent part, section 1238, subdivision (a)(10), reads as follows: An appeal may be taken by the people from [t]he imposition of an unlawful sentence . . . , meaning the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction. ( 1238, subd. (a)(10).) Since the People argue the order dismissing the prior prison terms is an unlawful order striking enhancements or prior convictions, we read this section as specifically authorizing the Peoples appeal. In addition, an order striking or dismissing an allegation of prior conviction is appealable by the People [under section 1238, subdivision (a)] as an order setting aside [part of] the indictment, information, or complaint. [Citations.] (People v. Jackson (1991) 1 Cal.App.4th 697, 700 -701.)

Citing People v. Scott (1994) 9 Cal.4th 331 (Scott), defendant also argues the People failed to object at the time of sentencing and therefore waived their right to argue on appeal that the courts rationale for dismissing the prior conviction allegations was legally insufficient. According to defendant, an illegal plea bargain was the Peoples only objection at the time of sentencing. We disagree.

To encourage the careful exercise of discretion and to decrease the risk of error, trial courts are required to orally articulate their reasons for discretionary sentencing choices. (Scott, supra, 9 Cal.4th at p. 351.) In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. (Ibid.) In Scott, our Supreme Court held the waiver rule applies to claims involving the trial courts failure to state or give sufficient reasons for discretionary sentencing choices. (Id. at p. 353.)

When given an opportunity to state objections on the record, the prosecutor not only complained about the court engaging in plea bargaining, but also argued there was no basis for striking or staying the five prison priors and defendant deserved a longer sentence based on his prior history. Accordingly, we conclude the People did not waive their right to argue on appeal that the courts rationale for dismissing the prior prison term allegations was legally insufficient.

2.Dismissal of the Prior Conviction Allegations

The People argue that the trial courts minute order dismissing the prior conviction allegations is insufficient because it does not state the reasons for the dismissal of the prior prison term allegations. We agree.

For each prior separate prison term served for any felony, section 667.5, subdivision (b), states that a consecutive one-year term shall be imposed for a new, nonviolent felony offense. Under section 1385, subdivision (a), a trial court may, on its own motion or upon the application of the prosecuting attorney, order a dismissal in furtherance of justice. However, [t]he reasons for the dismissal must be set forth in an order entered upon the minutes. [Citation.] 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. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero), quoting People v. Beasley (1970) 5 Cal.App.3d 617, 637.) A dismissal under section 1385 is invalid if the reasons are not stated in the minutes. (People v. Orin (1975) 13 Cal.3d 937, 951.)

Defendant also agrees the minutes should state the reasons for the trial courts dismissal of the prior conviction allegations but argues the error is minor and ministerial. According to defendant, the court outlined its basis for the dismissal of the prior conviction allegations on the record during the sentencing hearing, so all that is necessary is a remand for the clerk to place the reasons stated on the record in the minutes. Defendant also argues the courts dismissal of the prior prison term allegations was nothing more than an exercise of its inherent power to strike prior conviction allegations in furtherance of justice pursuant to Penal Code section 1385, subdivision (a).

The courts authority to dismiss prior conviction allegations pursuant to section 1385, subdivision (a), is limited and subject to review for abuse of discretion. (Romero, supra, 13 Cal.4th at pp. 497-531.) As our Supreme Court stated in Romero, the in furtherance of justice standard set forth in section 1385, subdivision (a), requires consideration both of the constitutional rights of the defendant, and the interests of society representedby 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.] [Citation.] 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.] [Citation.] [] From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely to accommodate judicial convenience or because of court congestion. [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant while ignoring defendant's background, the nature of his present offenses, and other individualized considerations. [Citation.] (Romero, supra, 13 Cal.4th at pp. 530 - 531.)

[A] prior conviction may be stricken if it is remote in time. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) In this context, the term remote means there was a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways. (Ibid.) A prior conviction that is relatively remote in time is not a mitigating factor if the defendant has led a continuous life of crime after the prior. (Ibid.)

Here, the court dismissed the oldest prior prison term allegation, theft with a prior from April 1, 1985, in violation of section 666, because it was remote. The court also dismissed the prior prison term allegation from 2000, in part, because it was remote. Following his conviction in 1985 for burglary and theft with a prior, defendant incurred four felony drug convictions between 1991 and March 22, 2005, the day he admittedly sold cocaine to an undercover officer, and was then arrested for cocaine possession on or about April 5, 2005. Defendant allegedly served time in prison for all of his prior convictions. Under these circumstances, remoteness is not a legitimate reason for dismissing the 1985 or the 2000 prior prison term allegations.

A decision to dismiss prior prison term allegations must be supported by legitimate factors in mitigation. (People v. Alexander (1992) 8 Cal.App.4th 602, 605-606.) The only other reason offered by the trial court for dismissing the 1985 prior prison term allegation is that defendant received an increased punishment on a count that he pled to on the same day in the case. Apparently, the trial court is referring to the prior burglary which qualified as a strike and which was incurred on April 1, 1985, the same date as defendants conviction for petty theft with a prior. On the record before us, we cannot discern how such a fact could be considered in mitigation to justify dismissing a prior prison term allegation made pursuant to section 667.5, subdivision (b), which was intended to provide for additional punishment of the felon whose prior prison term failed to deter him or her from future criminal conduct. [Citation.] (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1668.) Ambiguous reasons were also stated on the record to justify dismissal of the remaining prior prison term allegations. The court dismissed the 1991 possession case and the sales case from 1992 because these were stricken pursuant to plea negotiations when defendant pled guilty in the cocaine possession case (No. RIF122745). With respect to the last two prior prison term allegations for possession in 2003 and 2000, the court stated it did not feel it was necessary to add additional one-year prior prison terms. The court reasoned defendant would only be eligible for 20 percent credit as opposed to 50 percent credit,^[4]and was being sentenced to a lengthy term in state prison which was pursuant to the strike law. While the trial courts statements on the record clearly indicate its belief that a sentence longer than 12 years and four months was unwarranted, the court did not set forth mitigating factors to support the belief.

Based on the foregoing, we conclude the reasons stated orally on the record to support the dismissal of the prior prison term allegations are not enough to satisfy the in furtherance of justice standard set forth in section 1385, subdivision (a). As a result, we also reject defendants argument it would be sufficient to simply remand the matter so the clerk can correct the minutes from the sentencing hearing by adding the reasons stated by the trial court on the record for dismissing the prior prison term allegations. Because the order dismissing the prior prison allegations is invalid for failure to state the reasons in the minutes, it is unnecessary for us to determine whether there was an illegal plea bargain. However, the record does suggest the trial court may have indicated a willingness to strike the prior prison term allegations before defendant pled guilty, and this may have affected the disposition. Under analogous circumstances, our Supreme Court in Romero held the appropriate remedy is to vacate the judgment and to permit defendant to withdraw his plea before any resentencing. (Romero, supra, 13 Cal.4th at p. 532.) Therefore, we believe the appropriate remedy here is to vacate the judgment, remand the matter, and allow defendant an opportunity, if he so desires, to withdraw his guilty plea before he is resentenced by the trial court.

3.Presentence Credits Pursuant to Section 4019

Following his arrest in early April 2005, and as a result of his guilty plea on April 26, 2005, in the cocaine possession case (No. RIF122745), the trial court indicated in the abstract of judgment that defendant earned 12 local conduct credits under section 4019 for actual local time of 24 days. The People do not contest defendants entitlement to these credits. Rather, the People contend the trial court erroneously applied additional conduct credits under section 4019 in both cases when it re-sentenced defendant on April 10, 2006. We agree.

Under section 4019, pre-trial detainees in local custody may be eligible to earn credits for good conduct prior to the imposition of sentence for a felony conviction at the rate of two additional days for every four of actual custody. ( 4019, subds. (a), (b) & (f).) The sentencing court is responsible for calculating the number of days the defendant has been in custody before sentencing and for reflecting the total credits allowed on the abstract of judgment. (Buckhalter, supra, 26 Cal.4th at p. 30.) Eligibility to accrue presentence conduct credit under section 4019 depends on a defendants status and not on where he is housed. (In re Martinez (2003) 30 Cal.4th 29, 35-37.) Once sentenced to prison, a defendant loses eligibility to accrue presentence conduct credits under section 4019 even if he is temporarily returned to local custody for resentencing. (People v. Johnson (2004) 32 Cal.4th 260, 263-268.) Temporary removal from state prison to local custody does not change a defendants status from a state prisoner to a local presentence detainee. (People v. Buckhalter, supra, 26 Cal.4th at p. 33.) Rather, he remains in the constructive custody of prison authorities and continues to earn sentence credit, if any, in that status under a different scheme and not under section 4019. (Id. at pp. 30-33.)

Defendant was sent to state prison after pleading guilty in the cocaine possession case on April 26, 2005. However, the record indicates defendant was returned from state prison to local custody on or about November 30, 2005 to face the new charges in the cocaine sale case. On April 10, 2006, when defendant was sentenced in the cocaine sales case (No. RIF123418) and re-sentenced in the cocaine possession case (No. RIF122745), the new abstracts of judgment in both cases state defendant accrued local conduct credits pursuant to section 4019 in the amount of 186 for actual local time of 373 days for a total credit against his sentence of 559 days.

Although the record is unclear, it appears the court awarded defendant additional credits under section 4019 for time spent in local custody after he was sentenced and sent to state prison in the cocaine possession case on April 26, 2005 and while he was awaiting resolution of the cocaine sale case. This was error because defendant became ineligible to accrue credits under section 4019 once he was sentenced to serve a prison term. In other words, the original calculation of credits under section 4019 as reflected in the abstract of judgment filed on April 27, 2005, in the cocaine possession case did not change when defendant was re-sentenced in this case on April 10, 2006. Nor did it change when defendant was sentenced on the same date in the cocaine sale case. In other words, the original amount of credits awarded should have simply been transferred to the new abstract of judgment in the cocaine possession case following the re-sentencing on April 10, 2006.

Disposition

The sentences imposed in case Nos. RIF122745 and RIF123418 are vacated, and the matter is remanded to the trial court for resentencing in compliance with the views expressed in this opinion. However, before resentencing defendant in accordance with this opinion, the trial court is directed to permit defendant, if he so desires, to withdraw his guilty plea in case No. RIF123418 (the cocaine sale case). In accordance with the views expressed herein, upon resentencing, the trial court is reminded to review the presentence credits under section 4019 calculated as of the time defendant was originally sentenced in case No. RIF122745 and transferred to state prison.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

KING

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] Although the complaint in Case No. RIF122745 states the date of this conviction was May 18, 1991, it appears this was a typographical error because later references in the record indicate the correct date is May 28, 1991.

^[3] Neither party challenges the trial courts authority under section 1170.1, subdivision (a), to modify a sentence previously imposed in a different case and make it subordinate to the later-imposed term. (People v. Bozeman (1984) 152 Cal.App.3d 504, 507.)

^[4] It appears the reference to credits here means the calculation of work credits which may be earned during a prison sentence. (See People v. Buckhalter (2001) 26 Cal.4th 20, 33.)