P. v. Mathews

Filed 6/11/10 P. v. Mathews 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yolo)

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In this Peoples appeal, the trial court accepted defendant James Lee Mathewss plea to two felony counts of vehicle theft with a prior felony conviction (Veh. Code, 10851, subd. (a); Pen. Code, 666.5, subd. (a) [all further undesignated section references are to the Penal Code]), then purported to reduce both counts to misdemeanors under section 1385, which does not authorize that sentencing choice. Defendant argues that we should uphold the sentence in reliance on section 17, subdivision (b) (hereafter 17(b)), but that provision applies

only to crimes defined by statute as wobblers and defendants offenses are not so defined. Therefore, we shall reverse and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed July 19, 2004, in Yolo County, accused defendant in counts 1 and 3 of felony violations of Vehicle Code section 10851, subdivision (a), and section 666.5, subdivision (a), with a prior conviction for stealing a car in 1992, and in counts 2 and 4 of felony violations of section 496d, subdivision (a).[1] However, due to intervening proceedings in Butte County, which included repeated transfers to and from Napa State Hospital (described more fully below), the Yolo County proceedings did not go forward until December 2008.

Defendant moved twice for dismissal of the Yolo County information, citing section 1370 (purportedly requiring dismissal of criminal charges after a three-year period of commitment without regaining competence to stand trial), federal and state speedy trial requirements, and the interest of justice ( 1385).[2] Judge Stephen Mock denied the first motion on January 23, 2009; Judge David Rosenberg denied the second motion on March 20, 2009.

A first amended information, filed April 28, 2009, realleged the original counts and added enhancements for prior felony convictions in 1995, 1996, and 1998.

According to a court-requested probation department review of defendants custody credits, also filed April 28, 2009, defendant was booked on a warrant in Yolo County on June 13, 2004, and released from custody on June 18, 2004. At some unstated time, he incurred charges in Butte County. On October 23, 2004, he was transferred to Napa State Hospital on the Butte County charges, where he remained until April 26, 2005; the Yolo County warrant, then and afterward, was booked as a hold. He was again transferred to Napa State Hospital on the Butte County charges on May 3, 2006, and remained there until October 24, 2006. Further periods of confinement at Napa State Hospital occurred from January 24, 2007, to September 19, 2007, and from January 9, 2008, to March 12, 2008. On June 10, 2008, defendant was released to appear on the Butte County charges. Finally, on November 26, 2008, he was transported to Yolo County on the present charges.

The probation officer observed that if defendant pled to the charges now facing him, his maximum state prison term would be three years eight months. He presently had credit for time served of four years six months.

On May 15, 2009, defendant pled no contest to all counts (stipulating that the preliminary hearing provided the factual basis for the plea) and admitted the prior prison term enhancements, in return for the trial courts agreement to reduce the felonies to misdemeanors under [section] 1385 of the Penal Code and in the interest of justice and to award defendant credit for time served.[3] The court imposed a total sentence of one year in the county jail, but because defendant received credit for time served, he was released immediately. The prosecutor did not concur in this agreement.[4]

DISCUSSION

The People contend the sentence must be vacated because neither section 1385 nor section 17(b) can authorize it. We agree.

Section 1385, subdivision (a), provides: The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of

justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground for demurrer to the accusatory pleading. The rest of the statute authorizes striking or dismissing enhancements (or additional punishment for enhancements), but bars the striking of a prior serious felony conviction for purposes of enhancement under section 667. ( 1385, subds. (b), (c).) Nothing in section 1385, on its face or as construed in case law, authorizes reducing a felony to a misdemeanor.

Assuming the trial court sought to dismiss defendants case in effect by imposing a notional sentence, which would actually yield defendants immediate release, we know of no authority construing section 1385 to permit that sort of stratagem, and we cannot condone it.

Finally, the court failed to state on the record, as required by section 1385, why its sentence was in furtherance of justice.

For all these reasons, the sentence is not authorized under section 1385.

Defendant contends, however, that we can uphold the sentence on the following line of reasoning:

1. The underlying and substantive offense charged in counts 1 and 3--vehicle theft--is a wobbler.[5] (Veh. Code,

10851, subd. (a) [offense punishable by either prison or jail sentence].) The fact that counts 1 and 3 alleged a prior conviction under section 666.5, subdivision (a), does not alter the analysis because section 666.5 is a penalty provision and not a discrete crime.

2. Once the court had reduced the underlying offenses charged in counts 1 and 3 to misdemeanors, any additional enhancements (including the enhancement of an alleged prior conviction for the same offense) ceased to have significance and could not be imposed.

3. In addition, trial courts have the authority to strike prior conviction allegations unless that authority has been expressly limited, which it has not been as to allegations under section 666.5.

4. The trial court is presumed to have known and applied the correct law in sentencing, even if the court did not cite the controlling statute. Therefore, we must presume the court here understood and exercised its discretion under sections 17(b) and 1385, read together.

Defendants argument fails at the first step. Under the plain language of section 666.5 and Vehicle Code section 10851,

read together, a defendant who pleads no contest to the allegation of vehicle theft with a prior felony vehicle theft conviction has admitted an offense punishable as a felony under all circumstances. Having accepted that plea, the trial court has no discretion to treat the offense as a wobbler.

Vehicle Code section 10851, subdivision (e), provides in part: Any person who has been convicted of one or more previous felony violations of [Vehicle Code section 10851] . . . is punishable as set forth in Section 666.5 of the Penal Code. The existence of any fact that would bring a person under Section 666.5 of the Penal Code shall be alleged in the information . . . and . . .found to be true . . . by the

court where guilt is established by plea of guilty or nolo contendere. . . .

Section 666.5, subdivision (a), provides in part: Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, . . . is subsequently convicted of [this] offense[] shall be punished by imprisonment in the state prison for two, three, or four years[.]

Here, the information alleged the fact (defendants 1992 felony vehicle theft conviction) which made these provisions applicable, and defendant admitted that fact in entering his no contest plea as to counts 1 and 3. Thus, having accepted defendants admission, the trial court was required to sentence defendants offenses in counts 1 and 3 as felonies.

Defendant relies for the contrary proposition on People v. Young (1991) 234 Cal.App.3d 111 and People v. Garcia (2003) 107 Cal.App.4th 1159. His reliance is misplaced. It is true that both decisions deem section 666.5 an enhancement or penalty provision for recidivists, rather than a statute creating a new offense. (People v. Garcia, supra, 107 Cal.App.4th at pp. 1165-1166; People v. Young, supra, 234 Cal.App.3d at pp. 114-115.) But neither decision considers the question before us: whether a trial court, after accepting a defendants plea to the offense described in section 666.5 and Vehicle Code section 10851, can then treat the admitted offense as a wobbler despite section 666.5s contrary command. Therefore, these decisions are not on point.

Because the trial court had no discretion to treat defendants admission of a prior felony vehicle theft conviction as an enhancement severable from the offense charged in counts 1 and 3, but was required to sentence those counts as felonies, we cannot uphold the sentence imposed under the color of section 17(b).

Since defendants willingness to enter a no contest plea appears to have been conditioned on the quid pro quo of a misdemeanor conviction and sentence which would immediately release him from custody, we cannot presume that he would enter the same plea if that disposition were unavailable. Therefore, he must be given the opportunity to withdraw his plea.

DISPOSITION

Defendants sentence is vacated. The matter is remanded to the trial court with directions either to sentence defendant as required by statute or to give him the option of withdrawing his plea.

BLEASE , Acting P. J.

We concur:

NICHOLSON , J.

RAYE , J.

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San Diego Case Information provided by www.fearnotlaw.com

[1] Count 1 alleged the theft of a 1998 Champion Trailer; count 3 alleged the theft of a 1997 GMC Truck. All four counts were alleged to have occurred on or about February 26, 2004.

At the preliminary hearing on July 2, 2004, the following evidence was adduced: A law enforcement officer investigating a reported tractor theft stopped defendant on February 26, 2004, as he was driving a truck and pulling a trailer. The officer noted that the trailer did not have license plates. While detaining defendant, the officer discovered that the registration for the license plate on the truck had expired; subsequently, he discovered that the issued plate on the actual vehicle registration did not match the expired plate attached to the truck. The vehicle identification number belonged to a truck that had been reported stolen, as had the trailer. The trucks ignition lacked a key and showed pry marks around the ignition hole.

[2] The second motion alleged that the Butte County charges had been dismissed. The prosecutor confirmed that allegation.

[3] Once the felonies had been reduced to misdemeanors, the enhancements were no longer applicable.

[4] The parties dispute whether this disposition resulted from a plea bargain or from an indicated sentence for which the prosecutors consent was not needed. Because the sentence must be vacated as unauthorized, we need not resolve this dispute.

[5] The parties agree that the offense charged in counts 2 and 4 (receiving stolen property) is a wobbler. ( 496d, subd. (a).)