P. v. Jones

Filed 7/20/07 P. v. Jones CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa Foster, Judge. Affirmed in part and reversed and remanded in part.

Tracy E. Jones entered negotiated guilty pleas to four counts of robbery. (Pen. Code,  211.)^[1] He admitted seven prior strikes ( 667 subds. (b)-(i), 1170.12, 668), two prior serious felony convictions ( 667 subd. (a)(1), 668) and serving three prior prison terms ( 667.5 subd. (b), 668). The court sentenced him to prison for 48 years to life: 25 years to life for robbery (count one) with two prior strikes enhanced by two five-year terms for prior serious felony convictions, with consecutive one-year sentences on the remaining three robbery convictions (counts 2-4) (one-third the middle term), enhanced by two five-year terms for the prior serious felony convictions. Jones contends the sentence was unauthorized because the trial court erred in applying the prior serious felony enhancements to both the determinate terms and the indeterminate term and abused its discretion in refusing to strike the prior strike on all the convictions.

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred: During May 2004, Jones entered two banks and two credit unions in different parts of San Diego. In each, he threatened a bank teller, demanded money, and left with $3,260, $3,100, $320, and $1,650, respectively. Jones admitted serving three separate prison terms for a 1987 conviction of receiving stolen property (former  496.1), a March 1989 conviction of taking or unlawfully driving a stolen vehicle (Veh. Code,  10851, subd. (a)), and an April 1989 conviction for bank robbery (18 USC, 2123.)

DISCUSSION

I.

Jones argues that the trial court imposed an unauthorized sentence because it erred in applying the principle expressed in People v. Williams (2004) 34 Cal.4th 397 (Williams), rather than the principle expressed in People v. Tassell (1984) 36 Cal.3d 77 (Tassell), overruled on another point in People v. Ewoldt (1994) 7 Cal.4th 380, 401. The People concede that we must reverse the sentence and remand for resentencing because the sentence was unauthorized, not for the reason expressed by Jones, but because the trial court erred in imposing the entire sentence as if entered pursuant to section 1170.1 the 25 to life term enhanced 10 years for the prior serious felony convictions as the principle term with three subordinate terms of one-year each, enhanced 10 years for the prior serious felony conviction. The People are correct. We remand for correction of the error. To guide the trial court, we provide the following.

In Williams, supra, 34 Cal.4th at pp. 404-405, the Supreme Court held that when a defendant with prior strikes is convicted of multiple new felonies, and the court imposes indeterminate sentences, enhancements for conviction of prior serious felonies may be applied to each indeterminate sentence. In Tassel, supra, 36 Cal.3d at p. 91, the Supreme Court held that when a defendant is convicted of multiple new felonies on which the court imposes determinate sentences, consecutive determinate sentences enhancements for conviction of prior serious felonies may be imposed only once.

With the three strikes law, California adopted two separate sentencing schemes: one pursuant to section 667, subdivisions (b)-(i) and one pursuant to section 1170.1. (See Williams, supra, 34 Cal.4th at p. 402; People v. Cressy (1996) 47 Cal.App.4th 981, 991.) As discussed in Tassell and Williams, supra, only one enhancement for a prior serious felony conviction can be imposed on the sentence of a defendant sentenced to a determinate term pursuant to section 1170.1, while one enhancement for a prior serious felony conviction is required for each count on which a defendant is being sentenced to an indeterminate term pursuant to section 667, subdivisions (e)(2)(A). When a defendant is sentenced in one proceeding to both an indeterminate term and a determinate term, the standard we expressed in People v. Misa (2006) 140 Cal.App.4th 837 (Misa), applies. In Misa, the defendant had one prior strike and was convicted of one count of torture and two counts of assault with a deadly weapon. The trial court imposed a double indeterminate sentence on the conviction of torture with a prior strike and consecutive determinate sentences on the assault with a deadly weapon convictions. It enhanced the indeterminate sentence for torture with two enhancements for prior serious felony convictions and enhanced the determinate sentences for the same prior serious felony convictions. On appeal, Misa argued that the trial court erred in applying the principle expressed in Williams and refusing to follow Tassell. We affirmed. Jones argues that we misapplied the law. We disagree.

As the Supreme Court pointed out in Williams, supra, section 667, subd. (a) requires the trial court to add to a defendant's indeterminate prison term five years for each prior serious felony conviction. (Williams, supra, 34 Cal.4th at p. 401.) A court lacks authority to strike any prior serious felony conviction for the purpose of an enhancement. ( 1385, subd. (b).) Thus, when as here, the trial court is sentencing a defendant under the three strikes indeterminate sentencing scheme and under the section 1170.1 determinate sentencing scheme, it is required to impose the enhancement for a prior serious felony conviction on each count in the indeterminate sentencing scheme and once in the determinate sentencing scheme.

In the present case, because the trial court cannot impose a sentence greater than the sentence imposed before Jones appealed (see People v. Hanson (2000) 23 Cal.4th 355, 366-367), it may impose the 48-year term by sentencing Jones to serve 35 years to life for robbery with two prior strikes and two five-year enhancements for prior serious felony convictions, strike the prior strikes on the remaining counts, and impose a consecutive three-year middle term on a second robbery conviction enhanced ten years for the prior serious felony convictions and a concurrent term on the two remaining convictions. If the court wishes to impose a lesser term, its discretion is limited to striking a prior strike on all counts, or imposing double the lower term on the robbery conviction in the consecutive sentence.

II.

Whether to strike a strike prior is in the trial court's discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial court's decision not to strike a strike will be upheld unless the decision is irrational or arbitrary (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) That reasonable minds might differ or that we would have exercised discretion differently is not sufficient. (Ibid.) In ruling whether to dismiss a strike prior the court must consider whether, in light of the nature and circumstances of his present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163.)

In People v. Garcia (1999) 20 Cal.4th 490 (Garcia), the Supreme Court confirmed its holdings in Romero, supra, 13 Cal.4th 497 and Williams, but added that, "a defendant's sentence is . . . a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (Garcia, supra, 20 Cal.4th at p. 500.) Jones argues that the trial court erred in failing to consider that in light of Jones's lack of violence, minimal amount of money he stole, and the remoteness of the prior strikes, it was as unjust to impose a 48-year sentence on Jones as it would have been to impose the 144-year sentence that the probation department recommended (the sentence with no prior strikes stricken). However, the record demonstrates that the trial court was aware of its authority under Garcia to dismiss strike priors on some counts and at the same time not dismiss them as to other counts, and that the court made a deliberate decision not to dismiss the strike on one robbery conviction. It is not this court's prerogative to substitute our judgment for that of the trial court. The only issue for this court to determine is whether the trial court abused its discretion in refusing to strike the prior strikes and imposing a sentence of 48 years to life. Given Jones's criminal history, it did not.

Over the past 26 years, Jones has repeatedly been convicted of criminal acts including burglary ( 459), twice receiving stolen property (former  496.1), resisting arrest ( 148), theft of a firearm ( 487.2), taking or unlawfully driving a stolen vehicle (Veh. Code,  10851, subd. (a)), twice committing bank robbery (18 U.S.C.  2113), and the present four robberies. He does not fall outside the scheme of the three strikes law; the trial court did not abuse its discretion in refusing to strike the prior strikes.

DISPOSITION

The convictions are affirmed. The sentence is reversed and the matter is remanded for resentencing.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.

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