People v. Allen
Decision Date | 26 March 1997 |
Docket Number | No. A072753,A072753 |
Citation | 53 Cal.App.4th 1127,62 Cal.Rptr.2d 274 |
Court | California Court of Appeals |
Parties | , 97 Cal. Daily Op. Serv. 2236, 97 Daily Journal D.A.R. 4021 The PEOPLE, Plaintiff and Respondent, v. Joe Leo ALLEN, Defendant and Appellant. |
Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, George F. Hindall III and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
In the published portion of this opinion we will attempt to quell an incipient split among the Courts of Appeal over the meaning of footnote 13 1 to the Supreme Court's opinion in People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero). We hold the peculiar circumstances of Romero created a limited exception to the usual presumption of regularity in the exercise of sentencing discretion. We further hold a defendant otherwise entitled to relief under Romero, but who failed to request the sentencing court to act pursuant to Penal Code section 1385, subdivision (a) (section 1385(a)), does not forfeit the right to reconsideration of sentence in light of Romero.
A jury convicted defendant of three counts of unlawful possession of a controlled substance in violation of Health and Safety Code section 11350 and one count of possession for sale in violation of Health and Safety Code section 11378. Defendant claims the court committed prejudicial error when it instructed the jury to reject ignorance of the law as a defense to the possession charges. Additionally, defendant requests this court to remand for resentencing to determine whether the court would exercise its discretion to strike a prior. We will remand for reconsideration of sentence and reject defendant's other claims.
On January 27, 1995, an information charged defendant with one count of possession for sale of methamphetamine in violation of Health and Safety Code section 11378 and three counts of possession of a narcotic (Darvoset, Tylenol with codeine, and methadone) in violation of Health and Safety Code section 11350. The information further alleged two prior "strikes" within the meaning of Penal Code section 667, subdivisions (b) through (i). (All further unspecified code sections refer to the Penal Code.)
On May 15, 1994, at approximately 6 p.m., Officer David D. Brown (Brown) found defendant "passed out" or asleep on the front lawn of a Martinez residence. Brown awakened defendant and determined he was intoxicated. He arranged for defendant's transportation to "detox."
Prior to transporting defendant, Brown conducted a patsearch for weapons. The search revealed a small plastic white bottle containing 17 pills. Defendant reached into another pocket and pulled out another bottle. Brown looked inside and discovered six small plastic bags containing a white-colored powder. Brown then arrested defendant.
At the jury trial, Susan N. Giorgi, a forensic toxicologist, testified the powder in the bags found on defendant contained 1.23 grams of methamphetamine. She also determined the plastic bottle removed from defendant contained four Darvoset pills, eight Tylenol with codeine pills, and one methadone pill.
Defendant testified he knew the pills were pain-killers or "downers," but he believed they were "prescription pills." He stated: He also claimed: Finally, defendant asserted he did not know how he came into possession of the methamphetamine.
On November 29, 1995, the jury found defendant guilty of all charges. The jury also found the two priors to be true.
Defense counsel moved to strike the prior convictions and argued: "I will move now that you strike both of the strikes under the case published yesterday, Casillas, that I think you are familiar with because it's out of your court." The court denied the motion and stated:
On December 15, 1995, the district attorney moved to dismiss the second prior "strike," and the court granted the motion. The court sentenced defendant to state prison for a total of five years, four months. The court arrived at that sentence by doubling (pursuant to section 667, subds. (d) and (e)) the mid-term sentence of two years for possession of methamphetamine for sale, and doubling the subordinate consecutive sentence of eight months for possession of Darvoset. Pursuant to section 654, the court stayed sentence on the possession of Tylenol with codeine and possession of methadone.
I. No Instructional Error **
II. Remand is the Appropriate Remedy
Defendant contends remand is required because the record is silent on the question of whether the court knew it had discretion to strike a prior for purposes of sentencing. While this appeal was pending, the California Supreme Court filed its opinion in Romero, which held the trial court does retain the discretion to dismiss a prior felony conviction allegation and thus reduce the effect of the three strikes statute. The Supreme Court thus allowed judges to move sua sponte to reduce a sentence by striking one or more prior felony conviction allegations " 'in furtherance of justice' " (Romero, supra, 13 Cal.4th 497, 504, 53 Cal.Rptr.2d 789, 917 P.2d 628). The court also made its holding fully retroactive.
Some confusion arose from footnote 13, as modified, in the Romero opinion. It reads in full as follows: " (' .) (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1522, 56 Cal.Rptr.2d 749.) (The original footnote in the Romero opinion dated June 20, 1996 was modified Aug. 21, 1996 by the addition of the italicized language.)
We conclude remand is the appropriate remedy where the record is silent as to the sentencing court's understanding of its sentencing discretion under section 1385(a), between the date of the enactment of the three strikes law and the filing of the opinion in Romero. The Supreme Court would not have modified footnote 13 of its opinion to include remand by an appellate court if it intended petition by writ of habeas corpus to be the only available remedy. Moreover, the Supreme Court must have modified its footnote based on an understanding that petition by habeas corpus would be the more procedurally onerous remedy. A silent record cannot be seen to constitute a waiver by the defendant of the issue because section 1385(a) permits the motion to strike "in furtherance of justice" only by the prosecuting attorney or by the court on its own motion. During the 18 months leading up to the Romero decision, during which the law remained unsettled, some counsel may have anticipated the issue by requesting a statement of the court's understanding of the issue; however, the clients of counsel who failed to do so should not be penalized in view of the unsettled circumstances then existing.
Although footnote 13 describes only two circumstances where the "petition" may be summarily denied, these circumstances must be inferred to be applicable, as well, on appeal. These are: Where the court stated it believed it had the discretion ultimately affirmed by Romero, or where the sentencing court made it clear it would not, even if it had discretion, dismiss an allegation of a prior serious felony "in furtherance of justice." In the instant case, the court's cryptic reference to a single recent case supporting its authority to dismiss is not sufficient to establish either of the circumstances described in footnote 13 of Romero. Accordingly, we conclude the case must be remanded to the trial court so it may clarify whether or not it would exercise its discretion pursuant to section 1385(a).
Romero was amended by a single addition to footnote 13 two months after the opinion was filed. The only reasonable explanation for the modification of footnote 13 is the Supreme Court's realization of the large number of affected cases still pending on appeal. In contrast, the footnote in the Tenorio decision, after which the Romero court clearly modeled...
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