Filed 12/4/18 P. v. Fuentes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Roger

B. Robbins, Judge. Reversed and remanded with directions.

Tony Rackauckas, District Attorney, and David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Respondent.

In this case, the trial court exercised its discretion under Penal Code section 1385 to dismiss various sentence enhancements appellant admitted as part of a plea bargain.[1] The People contend reversal is required because the court failed to set forth its reasons for dismissal on the record. We must agree.

PROCEDURAL BACKGROUND

Respondent was charged with one count of unlawfully taking a vehicle. (Veh. Code, § 10851, subd. (a).) It was also alleged he acted for the benefit a criminal street gang and had suffered a prior theft conviction. (§§ 186.22, subd. (b), 666.5.) In addition, respondent was charged with one prior strike conviction, one prior serious felony conviction, and two prior prison terms. (§§ 667, subds. (a)(1), (d) & (e)(1), 667.5, subd. (b).)

After respondent pleaded guilty and admitted the enhancement allegations, the trial court sentenced him to three years in prison. The three-year term was solely attributable to the unlawful taking offense. Over the prosecutor’s objection, the court dismissed the gang enhancement in the furtherance of justice pursuant to section 1385, and as a result of that dismissal, the prior serious felony conviction was dismissed by operation of law. The court also dismissed respondent’s prior strike conviction and his prior prison terms, again under the auspices of section 1385.

DISCUSSION

The People assert the trial court abused its discretion by failing to state its reasons for dismissing respondent’s sentence enhancements. Respondent does not dispute this. However, he contends the People forfeited their right to raise this issue on appeal because they did not bring it to the trial court’s attention at the time of sentencing. Finding the forfeiture rule inapplicable, we reverse the court’s sentencing decision.

Section 1385 has long authorized trial courts to dismiss a criminal conviction or sentence enhancement in the furtherance of justice. (People v. Bonnetta (2009) 46 Cal.4th 143, 148-149 (Bonnetta) [noting the statute was enacted in 1872 to “codify California’s rejection of the English rule of nolle prosequi, under which the prosecutor alone had authority to discontinue a prosecution”].) However, because the power to dismiss, like any power, can be abused, a judge dismissing criminal charges under section 1385 “‘must record his reasons so that all may know why this great power was exercised[.]’ [Citations.]” (People v. Beasley (1970) 5 Cal.App.3d 617, 637.) In fact, the statute expressly states, “The reasons for the dismissal shall be stated orally on the record.” (§ 1385, subd. (a), italics added.) This admonition is mandatory, not merely a legislative directive. (Bonnetta, supra, 46 Cal.4th at pp. 149-150.)

In this case, it is undisputed the trial court failed to explain its reasons for dismissing respondent’s sentence enhancements. The only issue is whether the People are precluded from challenging that failure because they did not object at the time of sentencing. Relying on People v. Scott (1994) 9 Cal.4th 331, respondent invokes the forfeiture rule, under which only those claims that are properly raised and preserved in the trial court are reviewable on appeal. (Id. at p. 351.) Respondent rightly notes Scott applied this rule in the context of criminal sentencing. (Id. at pp. 352-353.) However, the rule only applies to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (Id. at p. 353.) It does not apply to “obvious legal errors” that are made at the time of sentencing. (People v. Smith (2001) 24 Cal.4th 849, 852.)

This was not a discretionary decision because, as we have explained, the law requires the trial court to provide reasons when it decides to dismiss all or part of a criminal case under section 1385. While the court has discretion in deciding whether to exercise its dismissal authority in the first place, once it decides to do so, it must state its reasons on the record. The trial court’s failure to do so in this case is an obvious legal error that is not disputed in any respect. As such, it is not an error that is subject to the forfeiture rule, as our Supreme Court made clear in Bonnetta, supra.

At the time Bonnetta was decided in 2009, section 1385 required the reasons for a dismissal to be stated on the record and entered upon the minutes. (Bonnetta, supra, 46 Cal.4th at p. 146.) Bonnetta held it was reversible error for the trial court not to enter its reasons for dismissal upon the minutes, even though those reasons were apparent from the sentencing hearing. (Id. at pp. 148-153.) The defendant argued the prosecution forfeited its right to challenge the error by failing to object to the lack of reasons in the trial court, but Bonnetta rejected that argument for two reasons. First, “because a minute order is entered by the court only after the hearing, the district attorney cannot easily ensure that it is entered or detect its absence.” (Id. at p. 152.) This rationale does not apply here, because after Bonnetta was decided the Legislature amended section 1385 so that it no longer requires the court’s reasons for dismissal to be entered upon the minutes. (See People v. Jones (2016) 246 Cal.App.4th 92, 96.) As noted above, the statute, as currently constituted, merely requires the trial court to state its reasons for dismissal “orally on the record.” (§ 1385, subd. (a).)[2] It would not have been the least bit difficult for the prosecutor to bring this requirement to the trial court’s attention at the time of sentencing in this case.

However, the second rationale offered by the Bonnetta court for finding the forfeiture rule inapt applies with full force here. The court reasoned, “[T]he failure to set forth the reasons for a dismissal in an order entered upon the minutes is not a routine defect in sentencing. It is a violation of a mandatory requirement put in place to benefit the public by assuring that a court through neglect or abuse of discretion has not misused the ‘great power’ of dismissal. [Citation.] ‘A person may waive the advantage of a law intended for his or her benefit [citation], but “a law established for a public reason cannot be waived or circumvented by a private act or agreement” [citations].’ [Citation.] Even less should a party’s inaction waive a statutory requirement established for the public benefit.” (Bonnetta, supra, 46 Cal.4th at pp. 152-153.)

Like the earlier requirement calling for the reasons for dismissal to be entered upon the minutes, the present requirement of an on-the-record pronouncement of reasons inures to the public good by ensuring the climacteric power of dismissal is not misused. Thus, the prosecutor’s failure to object to the lack of such a pronouncement in this case does not foreclose the People’s claim. Because the trial court did not comply with the statutory mandate to state its reasons for dismissal orally on the record, its sentencing decision must be reversed.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to either set forth its reasons for dismissal on the record, or to reconsider its decision and take appropriate action, including, if necessary, proceeding as if the dismissal order had not been entered in the first instance. (Bonnetta, supra, 46 Cal.App.4th at pp. 146, 153.)

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.