Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 18449, 25291, 6324 & 6326. David G. Vander Wall, Judge.
John Doyle, 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, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Gomes, J., and Kane, J.
In June 1995, a jury convicted appellant Shirley Ann Franklin of two counts of first degree burglary (Pen. Code, §§ 459, 460, subd. (a); counts 1, 2) and four counts of vehicle theft (Veh. Code, § 10851, counts 3 through 6). The jury also found true enhancement allegations that the victim in each of counts 1 and 2 was 65 years of age or older (§ 667.9); appellant admitted another enhancement allegation that she committed the charged offenses while out on felony bail or on her own recognizance in a different case (§ 12022.1); and after appellant unsuccessfully sought the dismissal of an allegation that she had suffered a “strike,” the court, in a separate proceeding, found that allegation true. In November 1995, the court imposed a prison term of 21 years 4 months.
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the terms “strike” and “strike conviction” as synonyms 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.
Appellant appealed, and in August 1997, in case No. F025108, this court affirmed the judgment and ordered the trial court to review the abstract of judgment. In November 1997, the California Supreme Court denied appellant’s petition for review and in December 1997, this court issued a remittitur certifying its decision as final.
On May 14, 2007, we granted appellant’s request to take judicial notice of this court’s opinion in case No. F025108. We also take judicial notice of this court’s modification of the opinion in case No. F025108, filed September 12, 1997. (Evid. Code, §§ 452, subd. (d), 459.)
On May 15, 2007, respondent filed a request, which appellant did not oppose, that we take judicial notice of (1) the Supreme Court’s order denying appellant’s request for review and (2) the remittitur issued by this court in case No. F025108 on December 2, 1997. We now grant that request. (Evid. Code, §§ 452, subd. (d), 459.)
In May 2006, appellant filed a “Notice of Motion and Motion to Strike a Strike” and a supporting memorandum of points and authorities (supporting memorandum). In her supporting memorandum, she asked that the court strike her strike conviction--a 1986 conviction for grand theft of a firearm (former § 487, subd. (3)--“pursuant to Penal Code § 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.” In July 2006, the court denied appellant’s request. The instant appeal followed.
The crime of grand theft of a firearm is now found in section 487, subdivision (d).
In May 2007, the People filed a “Motion to Dismiss” the appeal. Thereafter, appellant filed opposition to the People’s motion, in which she requested this appeal be deemed a petition for writ of habeas corpus. The People filed a reply. This court deferred ruling on the People’s motion and appellant’s request.
On appeal, appellant contends the court abused its discretion in denying appellant’s Romero motion. We will dismiss the appeal.
A criminal defendant’s request that a court strike one or more strike convictions pursuant to section 1385 is commonly called a Romero motion. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)
ADDITIONAL PROCEDURAL BACKGROUND
At the hearing on her Romero motion, appellant testified, inter alia, to the following. While in prison she completed various counseling and rehabilitation programs, which she detailed as follows: “I did [Narcotics Anonymous], [Alcoholics Anonymous], parenting, all the stuff. Sexual abuse stuff. I did parenting, optical, laundry, janitorial service, cosmetology, and all the other groups there.” She also participated in programs “where we make the hats and stuff for the kids, the hospital ....” She had suffered no convictions while in prison. If released, she had “supportive family,” including her fiancé, to whom she could return.
Attached to appellant’s supporting memorandum was a letter, signed by 37 persons, whom appellant identified as “people that come to the prison [and] run the programs there ....” In this letter, these persons asserted as follows: “[d]uring her past 7-1/2 years of incarceration, [appellant] has participated [in] and completed a multitude of programs including: anger management, drug/alcohol treatment, crime prevention, relapse prevention, women’s journal, domestic violence, co-dependence orientation, and after care planning classes”; appellant “has paid all her restitution”; she “has received no disciplinary action while in prison”; “[f]or the past six years, she has used her own time and money to make blankets, hats, socks and nightgowns for sick children at a local hospital”; and “[d]espite her incarceration and distance from her children, she has continued to support them financially and emotionally.” The signatories to the petition stated further, “We feel she that has served enough time and is not a threat to public safety.”
The following colloquy occurred at the hearing on the Romero motion:
“THE COURT: ... [S]he’s sent letters to the Court before asking that I reduce her sentence or let her out of prison for various reasons. This not really a Romero motion, but a plea to the Court to be sympathetic to let her out of prison now. [¶] ... [¶] ... I mean you’re using that not because on the Romero motion, but because she’s previously asked me to do -- she wants to get out. Thinks that I should be sympathetic to let her out after committing four counts of auto theft and two burglaries.
“MR. WENTZ [defense counsel]: Well, Judge, ... she was sentenced in 1995. She ... never got a chance to do a Romero motion.
“THE COURT: I understand that. That’s why she’s getting her consideration now.... [¶] ... [¶] ... But I’m asking you for reasons why other than just sympathy for her I should grant a Romero motion under the circumstances. Your feeling is that grand theft of a firearm ... shouldn’t be a strike; right?
“MR. WENTZ: Right.
“THE COURT: Anything else?
“MR. WENTZ: The ... things that I’ve mentioned. What’s different now is she has done over ten years ... in prison. [¶] ... [¶] … She has, in my opinion, served her time ... considering the nature of the offenses, and that’s why I was mentioning it’s not a homicide. It’s not gang related... [N]o violence [was] involved. [¶] And certainly if we were to come to the table today with a case like this, ten years would be more than fair deal.... [T]hat’s where I’m … coming from. Just an equity fairness.”
DISCUSSION
Appellant contends the court abused its discretion in denying her Romero motion. Specifically, she argues that the court, in considering whether to strike appellant’s strike pursuant to section 1385, erred in failing to consider appellant’s efforts to rehabilitate herself in the period between her 1995 sentencing and the hearing on her Romero motion in May 2006. The People counter that at the time of the hearing on appellant’s motion, the court lacked jurisdiction to strike appellant’s strike conviction under section 1385, and therefore the instant appeal should be dismissed. We agree with the People.
Section 1385 provides, in relevant part, “The judge or magistrate may, ... in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) In Romero, supra,13 Cal.4th at pp. 529-530, the California Supreme Court concluded that section 1385, subdivision (a) “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” But although “[a] defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385,” a defendant “does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’” (People v. Carmony (2004) 33 Cal.4th 367, 375.) And “a trial court’s failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 should be reviewed for abuse of discretion.” (Id. at p. 376.)
In People v. Williams (1997) 17 Cal.4th 148, our Supreme Court explained how a court should go about exercising that discretion: “[I]n 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 [section 1385, subdivision (a)], or in reviewing such a ruling, 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (Id. at p. 161.)
We recognize that section 1385 itself contains no explicit limitation as to when a court may exercise its discretion under the statute, and that it has been held that such discretion “may be exercised at any time during the trial, including after a jury verdict of guilty.” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136, italics added.) However, in Romero the court stated, “it is well established that a court may exercise its power to strike under section 1385, ‘before, during or after trial,’ up to the time judgment is pronounced.” (Romero, supra, 13 Cal.4th at p. 524 fn. 11, italics added.) And “[section 1385] has never been held to authorize dismissal of an action after the imposition sentence and rendition of judgment.” (People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8.)
This limitation on trial court jurisdiction to exercise section 1385 discretion flows from the “the general common law rule [that] a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of sentence has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344.) Under this rule, a trial court “‘surrender[s] its jurisdiction in the premises by committing and delivering the defendant to the prison authority.’” (Id. at p. 345, italics omitted.) The court applied this rule in People v. Superior Court (Cornelius) (1995) 31 Cal.App.4th 343 (Cornelius).
In that case, Cornelius, sentenced to prison in 1991, filed a “motion for reduction [in] sentence” in 1993 on various grounds. (Cornelius, supra, 31 Cal.App.4th at p. 345.) The trial court vacated Cornelius’s sentence and granted probation. (Ibid.) The People sought relief in the court of appeal in what that court deemed to be a writ of mandate proceeding, and the court of appeal, relying on Karaman, held that “under the common law rule, the trial court lost jurisdiction over Cornelius when it remanded her into custody for service of the prison term imposed.” (Cornelius, supra, 31 Cal.App.4th at p. 348.) The court also noted that “[n]otwithstanding the common law rule discussed ante, statutorily the jurisdiction of the trial court to mitigate the sentence is extended an additional 120 days by section 1170, subdivision (d),” but that period had expired before the trial court’s order vacating the sentence. (Ibid.) The appellate court vacated the trial court’s order and remanded Cornelius to the Department of Corrections. (Id. at p. 349.)
As indicated above, appellant brought her Romero motion more than 10 years after she was committed to prison. As in Cornelius, the trial court was without jurisdiction to modify appellant’s sentence.
Moreover, an order after judgment is appealable only if it “affect[s] the substantial rights of the party” (§ 1237, subd. (b)), and because the trial court lacked jurisdiction to grant the relief requested by defendant, the order denying defendant’s Romero motion did not affect his substantial rights. Therefore, the order denying appellant’s Romero motion was not appealable. (See People v. Chlad (1992) 6 Cal.App.4th 1719, 1725-1726 [because trial court lacked jurisdiction to modify sentence, order denying motion to modify was not an appealable postjudgment order].) The appeal must be dismissed.
Appellant argues that the People’s claim that the trial court was without jurisdiction to entertain appellant’s Romero motion is waived by the failure to raise the argument below. We disagree. “[T]he objection/waiver rule is generally not applied when the alleged error involves a pure question of law, which can be resolved on appeal without reference to a record developed below.” (People v. Williams (1999) 77 Cal.App.4th 436, 460.) Thus, in People v. Smith (2001) 24 Cal.4th 849, our Supreme Court noted that in other cases it had held “appellant intervention appropriate,” notwithstanding a failure to object to the error in the trial court, because “in [those] cases ... the errors presented ‘pure questions of law’ [citation], and were ‘“clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (Id. at p. 852.) The court held: “Because the erroneous imposition of a [mandatory parole revocation fine (§ 1202.45)] presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings. Accordingly, an invalid parole revocation fine falls within the narrow class of sentencing errors exempt from the waiver rule.” (Id. at p. 853.) Virtually the same considerations apply here. Therefore, the People’s claim is properly before us.
Addressing the merits, appellant also argues, as best we can determine, that under Romero, a defendant may raise the claim that appellant raises here, viz., that the trial court misunderstood the scope of its discretion under section 1385, by means of a petition for writ of habeas corpus (habeas petition) in the trial court, and thus, the trial court had jurisdiction to do by habeas petition what it lacked jurisdiction to do by Romero motion, viz., modify appellant’s sentence. Therefore, she asserts, this court should deem appellant’s Romero motion to be a habeas petition. Doing so, she argues, allows this court to reach the merits of her claim. Under this reasoning, Romero provides an independent basis for a trial court to exercise jurisdiction under section 1385 when it has lost that jurisdiction by the passage of time. There is no merit to this contention.
Appellant relies on the following passage from Romero: “Our holding [viz., a trial court may, on its own motion, strike a strike allegation under section 1385], which relates only to sentencing, is fully retroactive. [Citations.] A defendant serving a sentence under the Three Strikes law (§ 667, subds. (b)-(i), 1170.12) imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section [1385, subdivision (a)], may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence. Such a petition should be filed in the sentencing court. [Citation.] Such a petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.” (Romero, supra, 13 Cal.4th at p. 530, fn. 13, italics added.)
In our view, however, the Romero court, in declaring its holding retroactive and authorizing habeas relief where appeal is not available, contemplated challenges to a trial court’s failure to exercise section 1385 at a time when the trial court had discretion to do so, i.e., prior to judgment. As noted above, the Romero court indicated a trial court’s power to strike a strike conviction exists only “up to the time judgment is pronounced.” (Romero, supra, 13 Cal.4th at p. 524 fn. 11.) Nothing in Romero suggests the court meant to expand the jurisdiction of trial courts to exercise section 1385 discretion by abrogating the general rule that a trial court is deprived of jurisdiction to resentence a defendant once execution of sentence has commenced. Appellant’s claim that at the time of her 2006 Romero motion the trial court misunderstood the scope of its discretion under section 1385 to strike a strike conviction, whether raised by habeas petition or in any other manner, presupposes that the court had jurisdiction to exercise such discretion. However, as demonstrated above, in 2006, more than 10 years after she began serving her sentence, the court did not have such jurisdiction to modify appellant’s sentence and therefore the denial of appellant’s Romero motion is not appealable.
In case No. F025108, this court rejected appellant’s contention that a remand was necessary to allow the trial court to consider whether to exercise its section 1385 discretion to strike appellant’s strike conviction. We held (1) that the record was silent on the subject of the trial court’s knowledge of its sentencing discretion and therefore we were unable to conclude the court misunderstood the scope of its discretion, and (2) the record did not establish the trial court would have struck the strike had it been asked to do so.
Moreover, even if we were to accept appellant’s argument and deem her Romero motion to be a habeas petition, appellant cannot prevail on appeal, because the court’s ruling, if it is deemed the denial of a habeas petition, is not appealable. (In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; In re Hochberg (1970) 2 Cal.3d 870, 876, disapproved on other grounds in In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 3.)
Finally, appellant requests that this court deem the instant appeal to be a habeas petition filed in this court. We deny this request. We note, as demonstrated above, that appellant’s claim that the court abused its discretion in denying her Romero motion, whether it is raised by habeas petition or in any other manner, is grounded on section 1385; the trial court did not have jurisdiction to grant appellant’s claim for section 1385 relief; and therefore there could be no error in the denial of such relief.
In connection with her request that we treat the instant appeal as a habeas petition, appellant requests that we take judicial notice that appellant is incarcerated within the Central California Women’s Facility (CCWF); Deborah L. Patrick is the warden of CCWF; and the California Attorney General “usually if not always” accepts service on behalf of state prison wardens in “habeas matters” brought by inmates. This request for judicial notice is denied.
DISPOSITION
The appeal is dismissed.