P. v. Oper

Filed 2/14/06 P. v. Oper 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Gordon R. Burkhart, Judge. Affirmed in part, reversed in part and remanded with directions.

Grover Trask, District Attorney, Judith C. Clark, and Guy Pittman, Supervising Deputy District Attorneys, for Plaintiff and Appellant.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Respondent.

The prosecution appeals from the trial court's postverdict order purporting to dismiss a gang enhancement allegation (Pen. Code, § 186.22, subd. (b)(1)) in the interest of justice, on the court's own motion, pursuant to Penal Code section 1385, subdivision (a).^[1] We hold that the order is ineffective because the court failed to set forth the reasons for the dismissal on the minutes, as required by the statute. However, we do not agree that dismissing the enhancement would necessarily be an abuse of discretion, as the district attorney contends, and we will therefore remand the matter to permit the court to exercise its discretion in compliance with section 1385.

PROCEDURAL HISTORY

Defendant Scott David Oper was charged with one count of dissuading a witness by force (§ 136.1, subd. (c)(1).) The information alleged that the crime was committed in association with, at the direction of or for the benefit of a criminal street gang, within the meaning of section 186.22, subdivision (b).

A jury convicted defendant and found the gang enhancement allegation true. The court denied defendant's motion for a new trial. On its own motion, however, it dismissed the gang enhancement in the interest of justice pursuant to section 1385. The court imposed the low term of two years.

The prosecution appealed from the order dismissing the gang enhancement allegation.FACTUAL BACKGROUND

The victim in this case is Jayme Maletta. Ms. Maletta's husband, Randy Maletta, from whom she was divorced by the time of the trial in this matter, was charged with felony spousal abuse committed against Ms. Maletta. Approximately one week before Randy Maletta's preliminary hearing was scheduled to take place, Ms. Maletta had an encounter with defendant at a bar called Angel's, where Ms. Maletta was working as a topless dancer. Defendant and Ms. Maletta had known each other for many years and had had a brief sexual liaison some years earlier. However, they had not seen or spoken to each other for more than a year.

Ms. Maletta approached defendant and greeted him in a friendly manner. Defendant responded angrily, telling her to â€