P. v. Hernandez
Filed 8/9/12 P. v.
Hernandez CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
THE PEOPLE,
Plaintiff and Appellant,
v.
ALBERTO HERNANDEZ,
Defendant and Respondent.
C069967
(Super.
Ct. No. SF118952A)
Following an
unreported pretrial conference,
defense counsel indicated that defendant Alberto Hernandez desired to resolve
the case as outlined by the trial court.
Defendant would plead guilty to petty theft with a prior and the trial
court would sentence him to the low term of 16 months in prison, doubled for a
prior strike, but the trial court would dismiss a second strike
allegation. The prosecutor objected to
the proposed resolution and asked the trial court to state a reason for
dismissing the second strike allegation.
The trial court replied, “I think . . . it’s unconstitutional and cruel
and unusual punishment to do life for a petty
theft.” The prosecutor said “[i]t
sounds like . . . you disagree with the three-strikes law, because a
three-strikes law petty theft can result in that;” the trial court answered,
“yeah, I guess I do in that.” Defendant
pleaded guilty and the trial court sentenced him to prison for the low term of
16 months, doubled for a prior strike.
The People appeal
(Pen. Code, § 1238, subd. (a)(8) & (10);
40 Cal.4th 165, 173), contending the trial court (1) entered into an
unlawful judicial plea bargain, (2) abused its discretion by dismissing a prior
strike without considering the Williams
factors and without recording its reasons for striking the prior conviction in
the court minutes, and (3) incorrectly concluded that a third-strike sentence
for petty theft would constitute cruel and unusual punishment.
We conclude (1)
the trial court entered into an unlawful judicial plea bargain, (2) the trial
court improperly dismissed the prior strike allegation without considering the
in the court minutes, and (3) because we reverse and remand for further
proceedings, we need not reach the People’s third contention.
BACKGROUND
The matter was
resolved by plea and defendant waived referral to probation. Accordingly, our statement of facts is taken
from the prosecutor’s statement of the factual basis for the plea. On November
13, 2011, defendant entered a Wal-Mart store on Hammer
Lane, concealed $100 worth of items, and left the
store without paying for them. Defendant
has three prior theft-related convictions for which he served periods of
incarceration: a Merced
County conviction in March 1987 for
receiving stolen property, a Fresno County
conviction in April 1990 for vehicle theft, and a San
Joaquin County
conviction in September 2008 for petty theft with a prior.
The complaint in
this case accused defendant of petty theft with a prior
The complaint alleged defendant had three prior theft-related
convictions (§ 666) and two prior serious or violent felony convictions
(§§ 667, subds. (b)-(i), 1170.12).
Following an
unreported “pretrial conference or pre-prelim conference,” defense counsel
indicated defendant’s desire to resolve the case “around the lines of what the
Court outlined . . . .” If
defendant were to plead guilty or no contest to the present charge, admit the
theft priors, and “admit one of the enhancements under” section 1170.12, the
trial court would impose double the low base term. The trial court said it would also dismiss
the second strike allegation. The
prosecutor “noted for the record this disposition is over the DA’s
objection.”
Before taking the
plea, the trial court told defendant:
“Your record doesn’t suggest that you deserve any real breaks. On the other hand, I think it’s way over the
top to suggest that you should be doing life for petty theft.” When the prosecutor asked the trial court to
state a reason for the dismissal, the trial court replied, “I think that for
this offense, a petty theft, essentially a petty theft with a prior, that it’s
unconstitutional and cruel and unusual punishment to do life for a petty
theft.” When the prosecutor said, “[i]t
sounds like you’re saying you disagree with the three-strikes law, because a
three-strikes law petty theft can result in that,” the trial court answered,
“Yeah, unless there’s -- yeah, I guess I do in that.” The trial court invited the prosecutor to
seek extraordinary writ relief.
Defendant pleaded
guilty to petty theft with a prior. He
admitted the three theft-related convictions and one of the prior serious
felony convictions, a 1994 conviction for lewd acts with a child. (§ 288, subd. (a).) The trial court dismissed the second prior
serious felony allegation, a February 2000 conviction for lewd acts with a
child. Defendant waived referral to
probation and the trial court sentenced him to prison for the low term of 16
months, doubled for the prior strike, and awarded him 26 days of
credit.
DISCUSSION
I
The People contend
the trial court entered into an unlawful judicial plea bargain. We agree.
Where, as here, a
defendant resolves a case on the basis of a plea to less than all the charges,
without the prosecutor’s consent to dismissal of the remaining charges, the
only parties consenting to the disposition are the defendant and the trial
court. This is an unlawful judicial plea
bargain.
“‘[T]he charging function of the criminal process
is the sole province of the executive [branch of government]. [Citation.]
It is equally the function of the executive [branch] to engage in any
negotiation with the defense by which a lenient disposition of the charge made
is secured without trial.
[Citation.] “[The] court has no
authority to substitute itself as the representative of the People in the
negotiation process and under the guise of ‘plea bargaining’ to ‘agree’ to a
disposition of the case over prosecutorial objection.” [Citation.] . . .’ [Citation.]”
(People v. Woosley (2010)
184 Cal.App.4th 1136, 1145-1146.)
If, on remand, the case again resolves by
plea to less than all charges, it must occur with the approval of the
prosecution as explained in Woosley. (People
v. Woosley, supra, 184 Cal.App.4th at pp. 1145-1146.)
II
The People further
contend the trial court erred by dismissing a prior strike without considering
the Williams factors and recording
its reasons for striking the prior conviction in the court minutes. Again we agree.
A trial court must
follow established procedures to dismiss a prior strike allegation. “[I]in
ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own
motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a)
. . . , the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People
v. Williams, supra, 17 Cal.4th at p. 161.) There is no indication in this record that
the trial court considered the Williams
factors in dismissing the prior strike allegation.
In addition,
section 1385, subdivision (a) provides in relevant part: “The
reasons for the dismissal must be set forth in an order entered upon the
minutes.” This requirement is mandatory,
and in the absence of such a statement the dismissal order may not stand. (People
v. Bonnetta (2009) 46 Cal.4th 143, 148-153.) It is insufficient that the
reasons may be gleaned from the reporter’s transcript. (Id.
at p. 149.)
Here, the trial court’s reasons for
dismissing the prior strike allegation are not set forth in the court minutes.
III
The People also
contend that the trial court erred in concluding that a third-strike sentence
for petty theft would constitute cruel and unusual punishment.
Because we remand
for further proceedings, we need not reach this constitutional question, which
has been addressed by other courts.
(See, e.g., Lockyer v. Andrade
(2003) 538 U.S. 63, 66 [155 L.Ed.2d 144, 151-152] [third strike sentence for
two counts of petty theft with a prior for stealing, on separate occasions,
merchandise valued at $84.70 and $68.84]; Ewing
v. California (2003) 538 U.S. 11, 28, 30-31 [155 L.Ed.2d 108, 121-122, 123]
[third strike sentence for shoplifting golf clubs worth $1,200];
424-427.)
DISPOSITION
The judgment is
reversed and the matter is remanded to the trial court for further proceedings
consistent with this opinion.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] People
v. Williams (1998) 17 Cal.4th 148.
