Filed 8/14/17 P. v. Andrews CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
MARK VINCENT ANDREWS,
Defendant and Appellant.

A149694

(Sonoma County
Super. Ct. No. SCR-667773)


On the day Mark Vincent Andrews was released from prison, he crashed his vehicle while driving under the influence of heroin. He ultimately entered pleas of no contest to driving under the influence of a drug or narcotic and the combined influence of alcohol and drugs, with prior convictions for driving under the influence. He also admitted sentencing enhancements including a “strike” conviction. Andrews’s Romero motion to strike the prior conviction was denied, and he was sentenced to state prison. Andrews contends the trial court abused its discretion and violated his right to due process in denying the motion to strike. We affirm.
I. BACKGROUND
On the morning of December 10, 2014, Andrews was released from San Quentin State Prison. At approximately 7:00 p.m. that day, California Highway Patrol Officer David Spencer was dispatched to a solo injury traffic collision on Highway 101. On arrival at the scene, Spencer saw a Volkswagen up against the center divider guardrail on the southbound side of the highway. The driver, identified as Andrews, was still seated in the driver’s seat, unconscious and unresponsive. Spencer noted a faint odor of alcohol about Andrews, and observed “track marks” on his arms, indicative of long term intravenous drug use. Paramedics arrived, extracted Andrews from the car and transported him to the hospital. At the hospital, Andrews told Spencer he did not remember the crash because he had overdosed on heroin. A blood sample taken from Andrews revealed he was under the influence of morphine, codeine, opiates, and alcohol (0.04 percent blood alcohol content).
Andrews was charged by information with driving under the influence of a drug and under the combined influence of alcohol and drugs (Veh. Code, former § 23152, subds. (e) & (f); see id., § 23152, subds. (f) & (g)), each within 10 years of a prior felony driving under the influence offense (id., § 23550.5). The information further alleged Andrews served a prior prison term (Pen. Code, § 667.5, subd. (b); hereafter, § 667.5(b)) and suffered one prior strike conviction (id., §§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)).
On July 1, 2016, Andrews entered pleas of no contest to the charged offenses, and admitted both the prison prior and prior conviction allegations. He renewed a Romero motion to strike the prior conviction. The motion was heard and denied on August 29, 2016. Andrews was sentenced to a total of four years in state prison. The section 667(b) prison prior one-year sentence enhancement was stayed. Andrews filed a timely notice of appeal.
II. DISCUSSION
Andrews challenges only the court’s denial of his Romero motion. In Romero, our Supreme Court held that a trial court may strike or vacate an allegation or finding under the three strikes law that a defendant has previously been convicted of a serious or violent felony, on its own motion, in furtherance of justice pursuant to Penal Code section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at p. 504.) We review denial of a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376–377.)
The Supreme Court has explained that a sentencing court’s exercise of discretion to dismiss a prior strike allegation is to be guided by the following standard: May the defendant, in light of his or her current crime, criminal history, background, character, and prospects, be deemed “outside the . . . spirit” of the three strikes law, in whole or in part, such that he or she should be treated as though the prior strike conviction had not occurred? (People v. Williams (1998) 17 Cal.4th 148, 161.)
Andrews suggests his circumstances effectively mandated a grant of his motion to strike his prior conviction. He contends his strike prior was related to his “life-long struggle with substance abuse” and caused by his ingestion of Ambien, which placed him into a blackout and a somnambulistic state. Andrews characterizes his current offenses as the consequence of “a poor decision upon his unexpected release from state prison” and that in ingesting heroin, he “was only trying to obtain relief from the chronic and severe pain stemming from [a] back injury.” Andrews attempts to contrast his background with that of the defendant in People v. Williams, supra, 17 Cal.4th 128. Andrews notes the defendant in Williams had an extensive and violent criminal history, as opposed to Andrews’s lesser record. However, the Williams court found an abuse of discretion in the trial court’s grant of a motion to strike a prior conviction enhancement. (Id. at pp. 162–164.)
Andrews also cites People v. Garcia (1999) 20 Cal.4th 490 as an example of the Supreme Court’s approval of judicial discretion in striking sentence enhancing priors. Andrews misses the point. Both Williams and Garcia articulate the analysis required in a trial court’s determination to grant or deny a motion to strike, but neither case attempts to constrain the “individualized considerations” the court must evaluate. (Williams, supra, 17 Cal.4th at p. 159; Garcia, at p. 499.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
In denying the motion to strike, the trial court here considered the circumstances of Andrews’s 2010 first degree burglary conviction that constituted the strike offense, as well as Andrews’s offered explanation of his behavior. In that case, Andrews also was arrested following an injury accident while driving under the influence of a controlled substance. A search of Andrews’s car revealed a safe containing approximately $500,000 worth of valuables stolen from the home belonging to acquaintances of Andrews. The court considered Andrews’s criminal history both before and after the strike offense, noting that another department of the court had previously given Andrews leniency in granting a motion to strike when sentencing him on a 2014 felony conviction under Penal Code section 666. The court acknowledged Andrews “has periods of time when he is a very responsible family member and law-abiding citizen and someone who’s actively trying to work on his drug issues and so on,” but further observed Andrews’s “repeated behaviors of going back to drugs and committing acts that are just too numerous to ignore.” In declining to strike the prior conviction allegation, the court said, “I have great concerns that you will be let out again, you will use again, and as you did the day you were let out of San Quentin. And instead of snuggling up to a center guardrail, you’re going to crash it at 70 miles per hour into someone and kill someone or yourself. So that’s the reason that I’m not striking the prior at this time.”
A decision whether to strike a prior conviction “in furtherance of justice” under Penal Code section 1385, subdivision (a), “ ‘ “requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.” ’ ” (People v. Williams, supra, 17 Cal.4th at p. 159.) “[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) While Andrews insists he “does not fit the Three Strikes profile” and his offenses are not within the spirit of the three strikes law, that is far from an inexorable conclusion. “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, at p. 377.) We find no abuse of the court’s discretion.
We do, however, find a different error in the sentence imposed. Andrews admitted a prior prison term sentencing enhancement allegation under section 667.5(b). The trial court stayed the mandatory one-year consecutive term required under that statute. Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Failure to impose or strike the enhancement is a legally unauthorized sentence. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
In supplemental briefing, both the People and Andrews concede the error. Andrews’s appellate counsel represents that the trial court since “corrected” the section 667.5(b) sentencing error by striking the prison prior for which sentencing was previously stayed. The trial court, with the assistance of counsel, has only succeeded in compounding the error. “Subject to limited exceptions, well-established law provides that the trial court is divested of jurisdiction once execution of a sentence has begun. [Citation.] And, ‘[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.’ [Citations.] This rule protects the appellate court’s jurisdiction by protecting the status quo so that an appeal is not rendered futile by alteration. [Citation.] As a result of this rule, the trial court lacks jurisdiction to make any order affecting a judgment, and any action taken by the trial court while the appeal is pending is null and void.” (People v. Scarbrough (2015) 240 Cal.App.4th 916, 923.) There are limited exceptions to this jurisdictional divestment. For instance, the trial court may, while an appeal is pending, vacate a void judgment, correct an unauthorized sentence, or correct clerical errors in the judgment. (People v. Nelms (2008) 165 Cal.App.4th 1465, 1472.)
After Andrews filed his notice of appeal, the trial court had jurisdiction to correct its unauthorized failure to impose sentence on the section 667.5(b) prison prior and could have done so by imposing the one-year enhancement. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1424 [when a shorter term of imprisonment than required by law is imposed, “the sentence is legally unauthorized and may be increased even after execution of the sentence has begun”].) The court, however, attempted to do more by striking the prior, which would result in amendment of the judgment. “Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void. [Citations.] Indeed, ‘[s]o complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.’ ” (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472–1473; see People v. Nelms, supra, 165 Cal.App.4th at p. 1473 [no jurisdiction to dismiss count once defendant filed notice of appeal; resentencing premised on dismissal “of no force and effect”].) The trial court had no jurisdiction to modify the judgment during pendency of this appeal, and its actions are void. We therefore remand so that, after our decision becomes final, the court may properly act within its jurisdiction and impose a legal sentence.
III. DISPOSITION
The order denying Andrews’s motion to strike the prior conviction allegation is affirmed. The order staying imposition of sentence on Andrews’s prison prior pursuant to section 667.5(b) is reversed, and the matter is remanded to the trial court to either impose the mandated additional one-year sentence, or to exercise its discretion under Penal Code section 1385 to strike the prison prior for purposes of sentencing.





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BRUINIERS, J.


WE CONCUR:


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JONES, P. J.


_________________________
NEEDHAM, J.