People v. Bishop

• Decision Date: 04 August 1997
• Docket Number: No. B106237,B106237
• Citation: 66 Cal.Rptr.2d 347,56 Cal.App.4th 1245
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 6224, 97 Daily Journal D.A.R. 10,093 The PEOPLE, Plaintiff and Appellant, v. Leland Clark BISHOP, Defendant and Respondent.

Page 347

66 Cal.Rptr.2d 347

56 Cal.App.4th 1245, 97 Cal. Daily Op. Serv. 6224,

97 Daily Journal D.A.R. 10,093

The PEOPLE, Plaintiff and Appellant, v. Leland Clark BISHOP, Defendant and Respondent.

No. B106237.

Court of Appeal, Second District, Division 1, California.

Aug. 4, 1997.

Gil Garcetti, District Attorney, George M. Palmer, Diana L. Summerhayes and Natasha S. Cooper, Deputy District Attorneys, 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.

MASTERSON, Associate Justice.

The discretionary decision whether to dismiss a "strike" in furtherance of justice requires consideration of the legitimate interests of society and of the defendant. Appellate review of that decision is limited. In this opinion, we reject the People's argument that the trial court abused this discretion by failing to give the proper weight to "aggravating factors" as balanced against factors favoring leniency. Accordingly, we affirm an order dismissing strikes in furtherance of justice.

BACKGROUND

Leland Clark Bishop was charged by information with petty theft with a prior theft-related conviction that resulted in incarceration. (Pen.Code, § 666; all further undesignated section references are to the Pen.Code.) The information further alleged that Before the start of trial, Bishop requested that the court exercise its discretion to dismiss two of his strikes "in furtherance of justice" under section 1385, subdivision (a). ² He noted that the instant prosecution was based on his theft of six videocassettes from a Thrifty Drug Store. He was 50 years old, and his lifetime of crime was directed toward supporting his drug use. ³ Bishop argued that he was deserving of leniency because his convictions involving violence were remote in time and his present offense was "petty." Moreover, as a second strike defendant, he would still receive the very substantial state prison sentence of 12 years, thereby precluding his release until he is almost 60 years of age. ⁴

he had sustained eight prior convictions (later reduced to six) for which he had served prison terms (§ 667.5, subd. (b)) and three prior [56 Cal.App.4th 1248] convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). ¹

The prosecutor responded that Bishop was the type of offender the electorate had in mind when enacting the three strikes law. He had never successfully completed parole and was thus already doing a life sentence, albeit on the installment plan. Indeed, the present theft was committed within three days of Bishop's most recent discharge from state prison.

The trial court took the matter under submission. At a continued hearing the court stated that it had "spent a great deal of time cogitating the issue and reviewing the matter and reviewing the record." It then dismissed two of Bishop's strikes in furtherance of justice for the following reasons: "Strikes are remote (17 to 20 years old) and the nature of the current crime is non-violent. Penalty of 12 years seems appropriate." The court further commented that the 12-year sentence would "stop the revolving door of this defendant because it will keep him in prison for a significant period of time...."

Bishop thereafter entered a plea of guilty to the charged theft and admitted six prior convictions under section 667.5, subdivision (b). He was sentenced to the upper term of three years for theft, doubled under the three strikes law to six years, plus six consecutive one-year enhancements for his prior convictions, for a total term of twelve years.

DISCUSSION

Section 1385, subdivision (a), permits a dismissal by the trial court "in furtherance of justice." As recently stated by our Supreme Court, " ' "[T]he language of [section 1385], 'in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal." At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." ' 'Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged." " '[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.' " ' [p] From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial convenience or because of court congestion.' A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. Nor would a court act properly if 'guided solely Soon after Romero was decided, the Supreme Court in People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 60 Cal.Rptr.2d 93, 928 P.2d 1171 discussed the standard by which an appellate court should determine whether there has been such an abuse. In Alvarez, the court held that a trial court's authority under section 17, subdivision (b), to declare "wobbler" offenses to be misdemeanors was not abrogated by the three strikes law. The court further noted that, "[o]n appeal, two additional precepts operate: 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " ⁵ (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978, 60 Cal.Rptr.2d 93, 928 P.2d 1171, citations omitted.)

by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' " (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 530-531, 53 Cal.Rptr.2d 789, 917 P.2d 628, italics in original, citations omitted; accord, People v. Dent (1995) 38 Cal.App.4th 1726, 1731, 45 Cal.Rptr.2d 746.)

The People acknowledge that the exercise of discretion in this case was not based on impermissible factors such as judicial convenience or antipathy for the three strikes law, but was instead the result of individualized consideration of Bishop's background and present circumstances. The People contend, however, that the trial court erred in dismissing strikes because its reasons for doing so "[did] not outweigh the aggravating factors." The contention is unavailing.

A trial court weighs aggravating and mitigating factors when it faces the discretionary decision of which of three possible terms to impose under the determinate sentencing law. (§ 1170, subd. (b) [trial court mandated to impose a middle term "unless there are circumstances in aggravation or mitigation ... that justify imposition of the upper or lower term"].) That traditional weighing process occurred here when the trial court sentenced Bishop to the upper term of three years for the present offense, based on the aggravating factor of his prior record. Nonetheless, as stated in People v. Superior Court (Alvarez ), supra, 14 Cal.4th at p. 978, 60 Cal.Rptr.2d 93, 928 P.2d 1171, "[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are...