Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County Ct. No. MF47330. Ronald W. Hansen, Judge.
James L. Lozenski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Ward A. Campbell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Appellant Anthony Lavelle Cooper, pursuant to a plea agreement, pled no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and admitted allegations that he had (1) suffered a “strike” and (2) served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed a prison term of six years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus one year on each of two of the three prior prison term enhancements. The court declined to impose sentence on the third prior prison term enhancement.
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant contends the court, by declining to impose sentence on a prior prison term enhancement admitted by appellant but not striking the enhancement, imposed a legally unauthorized sentence. We will remand for further proceedings.
PROCEDURAL BACKGROUND
Appellant admitted allegations that he had suffered a strike, designated in the information as “Enhancement [sic] 1,” and was subject to three prior prison term enhancements, designated, respectively, as “Enhancement 2,” “Enhancement 3” and “Enhancement 4.” Subsequently, he entered into a plea agreement, one of the terms of which was that the maximum sentence he could receive would be six years in prison.
In pronouncing sentence, the court stated: “Because of Enhancement Number 1, that of his prior strike offense, the sentence is doubled to 4 years. He has three prison priors which are pled to but because of the plea disposition there is a cap, and so the Court imposes 1 year on Enhancement Number 2, 1 year on Enhancement Number 3, which -- and the court declines to impose Enhancement Number 4 based upon the plea. The Court sentences Mr. Cooper to the aggregate term of 6 years.”
The minute order for the sentencing hearing states, with respect to Enhancement 4: “The Court decline[d] to impose, as stated on the record.”
DISCUSSION
Appellant argues that the court, by failing to strike Enhancement 4, imposed an unauthorized sentence, and therefore remand for resentencing is required.
“It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to ‘strike the additional punishment for that enhancement in the furtherance of justice.’” (People v. Meloney (2003) 30 Cal.4th 1145, 1155, fn. omitted.) But if the sentencing court does not strike an enhancement that has been found true, or does not strike the punishment for such an enhancement, it must impose the enhancement. “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Section 1385 provides in full: “(a) 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 of demurrer to the accusatory pleading. [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. [¶] (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). [¶] (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).)” In the course of this opinion, we at times refer to section 1385, subdivisions (a) and (c) as, respectively, section 1385(a) and section 1385(c).
Thus, in Bradley, a jury found true four prior prison term enhancements, and although the trial judge imposed the prescribed one-year term on each of three of them, she “never indicated her disposition as to the [fourth].” (People v. Bradley, supra, 64 Cal.App.4th at p. 390.) The trial court’s “refusal to sentence” was held to be “legally unauthorized ....” The appellate court noted that there had been no order striking the enhancement under section 1385(a) because “the minutes contain no statement of reasons as to why judicial leniency would be in the interests of justice,” and “[h]ence, the absence of any statement in the minutes means no section 1385, subdivision (a) order striking the prior prison term enhancements was issued.” (Id. at p. 392.)
Although subdivision (a) of section 1385 refers to the court’s authority to “order an action dismissed,” and makes no specific reference to enhancements, it has long been established that trial courts have the power under section 1385(a) to strike an enhancement. (See, e.g., People v. Burke (1956) 30 Cal.3d 45, 50, disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647 [noting the “procedure of ‘striking,’ or setting aside or dismissing, a charge of a prior conviction ... at the time of sentence is not expressly provided for by statute but it is commonly used in trial courts ... where the fact of the conviction has been shown but the trial court has concluded that ‘in the interest of justice’ defendant should not be required to undergo a statutorily increased which would follow from judicial determination of that fact”].) We note that Bradley was decided before section 1385 was amended to add section 1385(c) (added by Stats. 2000, ch. 689), which, as indicated above, provides for the court’s authority to “strike the additional punishment” for an enhancement, provided the court “has the authority pursuant to subdivision (a) to strike or dismiss [such] enhancement.”
Similarly, in People v. Irvin (1991) 230 Cal.App.3d 180, the trial court (1) found true a prior prison term enhancement allegation but (2) “never orally stated that it was striking the enhancement.” (Id. at p. 191.) For these two reasons, the court held: “[T]he sentence as to the section 667.5, subdivision (b) enhancement was unauthorized by law .... [T]he trial court’s failure either to state that it was striking the enhancement or to impose it was ‘analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal.’” (Id at pp. 191-192.)
Responding to the argument that the trial court had the authority to strike the enhancement under section 1385(a), the court of appeal stated: “However, the trial court never purported to act pursuant to section 1385, subdivision (a). The trial court never stated that it was dismissing or striking the enhancement. Furthermore, the trial court never set forth the reasons for such a dismissal ‘in an order entered upon the minutes.’ (§ 1385, subd. (a).) The requirement that reasons be set forth in writing is mandatory when there is a dismissal pursuant to section 1385, subdivision (a). [Citation.] Finally, in People v. Jordan [(1986)] 42 Cal.3d 308, 318, footnote 6, a defendant argued that a sentencing court had the authority to strike a prior prison term enhancement pursuant to the terms of section 1385 as it was then worded. As in the present case, the superior court judge never stated that he was acting pursuant to section 1385. The Supreme Court concluded that since the ‘trial court never purported to exercise discretion under section 1385,’ the issue of the possible applicability of section 1385 to that case could not be raised for the first time on appeal. (Ibid.) The same is true in the case at bar.” (People v. Irvin, supra, 230 Cal.App.3d at p. 192.)
Here, the trial court “decline[d] to impose” Enhancement 4. As in Bradley and Irvin, the court neither struck nor imposed an enhancement found true, nor did it make any mention of, or purport to be acting under, section 1385. Therefore, the court failed to impose sentence in accordance with law.
The People argue we should deem the court’s statement that it declined to impose Enhancement 4 “based upon the plea” to be the equivalent of a pronouncement that the court struck the punishment for the enhancement pursuant to section 1385(c). We disagree.
Ante, footnote 3.
As the People indicate, a sentencing court may strike the punishment for an enhancement under section 1385(c.). However, to do so, the court must comply with section 1385(a). The People appear to recognize that under section 1385(a), “[t]he reasons for the dismissal must be set forth in an order entered upon the minutes,” and that the minute order, in this regard, states only that the court declined to impose Enhancement 4 “as stated on the record.” The People argue that this reference to “the record” satisfies the requirement that reasons be set forth in the minutes because it represents a “‘clear incorporation’” of the court’s on-the-record reference to the plea agreement. We assume without deciding that, as the People imply, incorporation by reference in the minute order of matters found in the reporter’s transcript may satisfy the set-forth-in-the-minutes requirement of section 1385(a). Nonetheless, the court’s cursory reference to “the plea” does not constitute an adequate statement of reasons under section 1385.
It appears that for this proposition the People rely on People v. Oren (1975) 13 Cal.3d 937, where the California Supreme Court, in finding a failure to comply with section 1385(a), stated: “The record discloses no statement of reasons whatsoever in connection with the elliptic order of dismissal at the bottom of the form ... nor do we find anywhere in the pertinent part of the record [citation] any reasons stated which by clear incorporation or reference may be deemed to be the ‘reasons of the dismissal ... set forth in an order.’ (§ 1385; ....)” (Id. at p. 944.) The People cite no case, nor we are aware of any, in which a “clear incorporation or reference” (ibid.) in the minutes has been held to satisfy section 1385(a). We note that case law is replete with statements like the following: “[Section 1385] does not say and the cases have not allowed the interpretation that ‘the reasons shall appear somewhere in the record.’ There is a difference between minutes of the court and oral pronouncement. Thus even if they expressed valid reasons which may appear in the record, for example, in the transcript of what is said, if those reasons do not appear in the minutes the mandatory requirements have not been met. Arguably it would not be unreasonable to look at the record to find out what was said and perhaps to deem the entire record included in the minutes. But we believe it would be inappropriate to do so in a case involving dismissal; and we will not do so here. A dismissal is a drastic and inexorable remedy. [Citations.]” (People v. Andrade (1978) 86 Cal.App.3d 963, 974-975.)
“The purpose behind the requirement for specification of reasons in the minutes has been stated to be: to protect the interests of the public [citation], to protect the public interests against improper or corrupt dismissals [citation], to restrain judicial discretion and curb arbitrary action for undisclosed reasons and motives [citation], and to enable the appellate court to determine whether discretion has been properly exercised [citation]. [¶] A specification of reasons couched in conclusionary language, and which fails to set out the factual basis upon which the conclusions are reached, thwarts the very purpose of the statutory requirement and fails to give effect to the legislative intent behind it.” (People v. McAlonan (1972) 22 Cal.App.3d 982, 986; accord, People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136.)
In McAlonan, the statement of reasons contained in the trial court’s minute order was as follows: “‘“It is the Court’s finding that the interests of the defendant and of his rehabilitation, and the interests of society in his rehabilitation will be better served by a dismissal of this action pursuant to the provisions of Penal Code Section 1385. The Court therefore orders the dismissal of the action in the furtherance of justice.”’” (People v. McAlonan, supra, 22 Cal.App.3d at p. 985.) The court of appeal held: “It cannot be determined from reading the order what facts motivated the trial judge to conclude the rehabilitation of the defendant he believed to be guilty as charged would be best served by a dismissal of the action. ‘Lacking any factual content, it [the order] offers no appropriate gauge by which we may test the propriety of the exercise of discretion.’ [Citation.] More important, the order provides an inadequate basis for public scrutiny, because its propriety cannot be judged without reference to the entire record.... [W]e conclude the order was invalid because it failed to set out the factual basis upon which it was made.” (Id. at p. 986.)
Here too, the court’s statement contains no indication of any facts supporting the conclusion that dismissal of Enhancement 4, or the striking of punishment for that enhancement, would be “in furtherance of justice” (§ 1385(a)). The court’s act of declining to impose sentence on Enhancement 4 cannot be deemed a valid striking of the punishment for the enhancement under section 1385(c), as the People contend, because the court did not comply with section 1385(a).
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court to determine whether to impose a one-year term on Enhancement 4 pursuant to section 667.5, subdivision (b), or to strike the enhancement and/or the punishment for the enhancement pursuant to section 1385. If the court chooses not to strike the enhancement and/or its punishment, appellant is to be accorded the opportunity to withdraw his plea.