People v. Bailey

• Decision Date: 08 August 1995
• Docket Number: No. B087285,B087285
• Citation: 44 Cal.Rptr.2d 205,37 Cal.App.4th 871
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 37 Cal.App.4th 871, 41 Cal.App.4th 1797, 46 Cal.App.4th 743 37 Cal.App.4th 871, 41 Cal.App.4th 1797, 46 Cal.App.4th 743, 95 Cal. Daily Op. Serv. 6328, 95 Daily Journal D.A.R. 10,739 The PEOPLE, Plaintiff and Appellant, v. Calvin BAILEY, Defendant and Respondent.

Page 205

44 Cal.Rptr.2d 205

Previously published at 37 Cal.App.4th 871, 41 Cal.App.4th 1797, 46 Cal.App.4th 743

37 Cal.App.4th 871, 41 Cal.App.4th 1797, 46 Cal.App.4th 743,

95 Cal. Daily Op. Serv. 6328,

95 Daily Journal D.A.R. 10,739

The PEOPLE, Plaintiff and Appellant, v. Calvin BAILEY, Defendant and Respondent.

No. B087285.

Court of Appeal, Second District, Division 7, California.

Aug. 8, 1995.

As Modified Aug. 21 and Sept. 7, 1995.

Review Granted Nov. 16, 1995.

Review Transferred to the Court of Appeal Oct. 1, 1997.

Gil Garcetti, Dist. Atty., Diana L. Summerhayes and Glenn R. Britton, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Judge, Public Defender, Albert J. Menaster, Elizabeth Warner-Sterkenburg, and Alex Ricciardulli, Deputy Public Defenders, for defendant and respondent.

FRED WOODS, Associate Justice.

INTRODUCTION

On July 8, 1994, a one-count felony complaint was executed charging Calvin Bailey ("defendant") with the crime of second degree commercial burglary, in violation of PENAL CODE SECTION 459¹ (case No. NA020760).

It was further alleged for purposes of section 667, subdivisions (b) through (i) ² that defendant suffered the following prior felony convictions in the Los Angeles County Superior Court:

Robbery (two counts) in violation of section 211 on or about July 17, 1986, (case No. A033037);

Robbery with great bodily injury in violation of section 211 with additional punishment under section 12022.7 (case No. A033277).

It was further alleged for purposes of sections 667.5, subdivision (b) that defendant served terms in state prison for his convictions in case Nos. A033037 and A033277 and failed to remain free of prison custody for, and did commit an offense resulting in a felony conviction during a period of five years after the conclusion of said terms. ³

On July 15, 1994, before Superior Court Judge Arthur M. Jean sitting as a magistrate, defendant entered a plea of guilty to the charge of second degree burglary and admitted the truth of the prior conviction in case number A033037 which the People alleged as one prior although two counts of robbery were referred to. The magistrate struck the prior felony allegation in case number A033277 (robbery with great bodily injury) purporting to act under section 1385, over the objection of the People. The matter was set for sentencing on July 29, 1994.

On July 29, 1994, Judge Jean, sitting as a Superior Court judge, again struck the prior alleged under case number A033277, again purporting to act under section 1385, and over the objection of the People. The defendant was then sentenced to seven years in the state prison, computed by doubling the high term (§ 667, subd. (e)(1)) plus an additional year for the remaining prior allegation under section 667.5. The sentence was imposed as if the current case was a "second strike" rather than a "third strike" case.

On August 9, 1994, the People filed a timely notice of appeal from the imposition of an illegal sentence and the dismissal of the allegations.

STATEMENT OF FACTS

The Charges

The underlying charge of second degree commercial burglary in the current case (No. NA020760) is uncomplicated. Defendant entered a K-Mart with the intent to steal. Once inside the store, he took numerous items valued at approximately $225 or $226 and put them in a K-Mart bag while in the store. He left the store without paying for the items and was stopped by a security guard as he exited the store.

The special allegations filed in the current case are more complex, and are synthesized and described in the "INTRODUCTION" section of this opinion.

The Proceedings of July 15, 1994

On July 15, 1994, defendant, through his trial attorney, offered to plead guilty in exchange for a seven year sentence. Defendant's counsel argued that the three strikes statute allowed the prosecution to strike priors under section 1385 in the interest of justice and thus, the trial court had the power to strike prior allegations based on the separation of powers doctrine and the case of People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993. Defendant's counsel also made the additional argument that the court should strike one prior allegation The People argued against the defendant's request to strike the prior on the following basis, inter alia: section 1385, subdivision (b) does not authorize a judge to strike a prior alleged under section 667; section 667, subdivision (f)(2) gives the power to strike such a prior conviction allegation only to the People in the interest of justice; and the court was given the power to strike such an allegation only for a failure of proof, which did not exist in the instant case. Additionally, the People objected on the ground that the trial court was engaging in plea bargaining which was prohibited by section 667, subdivision (g).

on the basis that the sentence of 25 years to life required by the three strikes law was unconstitutional as applied to defendant due to the cruel and unusual punishment clauses of both the federal and state constitutions.

The trial court then struck the prior allegation pertaining to case number A033277 (robbery with great bodily injury) containing a section 667.5, subdivision (b) allegation, giving a lengthy statement of its reasoning. During this statement of reasons, the trial court indicated: "it appears to me that I do have the authority to strike the prior. If I'm wrong, I'm sure the appellate court will tell you and come back here and then Mr. Bailey can then make his decision about what he's going to do." The trial court purported to act under section 1385. ⁴ Additionally, the trial court took "the further step of finding that it would be cruel, unusual, unfair, Draconian and a terrible unjustice [sic ] if Mr. Bailey spent the rest of his life in prison for this petty theft," purporting to act under the state and federal constitutions.

The People again objected that "the court is going completely against the intent of the Legislature. They were aware that this would bring into its web people who committed petty thefts with priors and they chose to pass this law, regardless...."

The defendant then entered a plea of guilty and the court parsed as follows: "... except for the prior that is alleged in A033037, a 1986 prior on page 2 in the second full paragraph, or on the first full paragraph, the second paragraph." The matter was set for sentencing on July 29, 1994.

The Proceedings of July 29, 1994

On July 29, 1994, the court additionally struck "count 2 in case No. A033037," again purporting to act under section 1385 and the cruel and unusual punishment clauses of the federal and state constitutions and again over the objection of the People. Before the court struck this prior, the trial prosecutor had indicated that despite the striking of the allegation of a prior felony conviction the plea in the current case was still a three strike case. In response, the court indicated that it intended to "take that action which permits me to sentence Mr. Bailey as a two strike cases, so that I can arrive at seven years for what this is, commercial burglary involving no loss, no ultimate loss, but a potential loss of about $200 and some odd dollars." When the prosecutor inquired if that meant that the court was going to strike "yet another 211," the court responded "I will strike whatever is necessary to get down to the two strike level, where I can sentence Mr. Bailey to seven years."

The trial prosecutor then argued (1) that section 667, subdivision (c)(2) prevented the court from suspending imposition or execution of sentence for the prior conviction, which the defendant had admitted at the plea; (2) that 1385, subdivision (b) and case law prevented the court from striking the prior; and (3) that section 667, subdivision (g) prevented the court from striking the prior for purposes of plea bargaining, which "the court has done in this case."

Also during this hearing, the prosecutor described in some detail the defendant's prior offenses, both those alleged as priors in the instant case (including those stricken) and another one which had not been alleged. The prosecutor also described the defendant's The defendant was sentenced to seven years in the state prison, computed as double the high term (because it was now a "second strike") plus an additional year for the remaining prior allegation under section 667.5, subdivision (b).

assets to show "that the defendant is not stealing or committing these robberies because he is in need of property...." The trial court also made some comments about the defendant's record during sentencing.

ISSUES PRESENTED

Appellant contends that the court imposed an unlawful sentence because (1) the trial court judge erroneously found that he had the authority to strike priors alleged under section 667, subdivisions (b) through (i), on the basis that restrictions on the court's power to strike violated the separation of powers doctrine, (2) the trial court erroneously found that the mandated sentence of 25 years to life violated the cruel and unusual punishment clauses of the federal and state constitutions, and (3) the trial court erroneously ruled that Penal Code section 1385, subdivision (b) applies only to enhancements and since sentences in "three strike" cases are not enhancements there is no bar to dismissal of priors in the interest of justice.

DISCUSSION

1. Subdivision (f)(2) of Penal Code Section 667 Does Not Violate The Separation of Powers Doctrine.

A. The trial court had no authority to strike the prior under section 1385.

Under the sentencing scheme enacted by the legislature known as the "three strikes" law, the penalty for a person convicted of a felony who has two or more prior violent or serious felony convictions is set forth in section 667, subdivision (e): "(2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled...