People v. Bradley

• Decision Date: 01 June 1998
• Docket Number: No. B110426,B110426
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4172, 98 Daily Journal D.A.R. 5741 The PEOPLE, Plaintiff and Respondent, v. Larry Venorrise BRADLEY, Defendant and Appellant.

Page 244

75 Cal.Rptr.2d 244

64 Cal.App.4th 386, 98 Cal. Daily Op. Serv. 4172,

98 Daily Journal D.A.R. 5741

The PEOPLE, Plaintiff and Respondent, v. Larry Venorrise BRADLEY, Defendant and Appellant.

No. B110426.

Court of Appeal, Second District, Division 5, California.

June 1, 1998.

Certified for Partial Publication ^*

As Modified June 11, 1998.

Review Denied Sept. 16, 1998.

Debra R. Huston, under appointment by the Court of Appeal, Carmel, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters, and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

Defendant, Larry Venorrise Bradley, appeals from his convictions for forgery (PEN.CODE, § 470)¹ and possession of a completed check with the intent to defraud. (§ 475a.) He was also found to have served four prior prison terms (§ 667.5, subd. (b)) and to have previously been convicted of four serious felonies. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In the published portion of the opinion, we discuss whether the trial judge had a duty to impose or strike an additional prior prison term enhancement. We affirm in part and reverse in part with directions.

II. DISCUSSION

A. Prior Prison Term Enhancement Issues

The Attorney General argues that the trial court erred in failing to impose a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b), with respect to the defendant's prior prison term in People v. Bradley (Super.Ct. L.A. County, No. A588238). At the time of sentencing the trial court orally imposed three of the four prior prison term enhancements found to be true by the jury. However, the trial judge never indicated her disposition as to the prior prison term served beginning in 1981 in People v. Bradley (Super.Ct. L.A. County, No. A588238).

As will be noted, we conclude in the published portion of this opinion: to neither strike nor impose a prior prison term enhancement is a legally unauthorized sentence the power to strike a prior prison term enhancement pursuant to section 1385, subdivision (a) survived the adoption of sections 667, subdivisions (b) through (i) and 1170.12; effective January 1, 1998, there is no longer the authority to strike a prior prison term pursuant to former section 1170.1, subdivision (h); and remand is appropriate for the trial court to exercise discretion pursuant to section 1385, subdivision (a) as to the prior prison term resulting from No. A588238.

1. The Unauthorized Sentence Issue

The trial court had a duty to impose sentence in accord with the law. (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589, 266 Cal.Rptr. 710; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612, 244 Cal.Rptr. 269; People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537, 230 Cal.Rptr. 890 disapproved on another point in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3, 51 Cal.Rptr.2d 429, 913 P.2d 458; People v. Santana (1986) 182 Cal.App.3d 185, 191-192, 227 Cal.Rptr. 51.) The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. (People v. Irvin (1991) 230 Cal.App.3d 180, 190, 281 Cal.Rptr. 195; see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311, 28 Cal.Rptr.2d 172.) No doubt, section 667.5, subdivision (b) enhancements are subject to the exercise of the trial court's discretion to strike pursuant to section 1385, subdivision (a). (People v. Thomas (1992) 4 Cal.4th 206, 209-210, 14 Cal.Rptr.2d 174, 841 P.2d 159 ["the power to dismiss an 'action' under section 1385 includes the power to dismiss or strike an enhancement"]; People v. Santana, supra, 182 Cal.App.3d at pp. 190-191, fn. 6, 227 Cal.Rptr. 51; People v. Sutton (1985) 163 Cal.App.3d 438, 445-446, 209 Cal.Rptr. 536, disapproved on another point in People v. Equarte (1986) 42 Cal.3d 456, 465, fn. 12, 229 Cal.Rptr. 116, 722 P.2d 890.) If a trial judge exercises the power to strike pursuant to section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in writing in the minutes. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531-532, 53 Cal.Rptr.2d 789, 917 P.2d 628; People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 533 P.2d 193.) Further, at the time defendant was sentenced, on February 25, 1997, the trial court had the power to strike the prior prison term enhancements pursuant to former section 1170.1, subdivision (h). (Repealed by Stats.1997, ch. 750, § 3.) ² However, in order to strike an enhancement, former section 1170.1, subdivision (h) required that mitigating circumstances be set forth on the record. (People v. Jordan (1986) 42 Cal.3d 308, 318, 228 Cal.Rptr. 197, 721 P.2d 79; People v. Alexander (1992) 8 Cal.App.4th 602, 605, 10 Cal.Rptr.2d 450.)

In the present case, the trial judge never struck the prior prison term enhancement arising from No. A588238 either pursuant to section 1385, subdivision (a) or former section 1170.1, subdivision (h). As to section 1385, subdivision (a), the minutes contain no statement of reasons as to why judicial leniency would be in the interests of justice. Hence, the absence of any statement in the minutes means no section 1385, subdivision (a) order striking the prior prison term enhancements was issued. Citing its prior decision in People v. Orin, supra, 13 Cal.3d at page 944, 120 Cal.Rptr. 65, 533 P.2d 193, the Supreme Court in Romero held: " ' "[I]f the reasons are not set forth in the minutes, the order dismissing may not be considered a dismissal under section 1385." [Citations.]' " (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 532, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Moreover, the trial court never orally stated it was dismissing or striking the prior prison term enhancements in People v. Bradley (Super.Ct. L.A. County, 1988, No. A712091) and People v. Bradley (Super.Ct. L.A. County, 1988, 15995). No dismissal under section 1385, subdivision (a) occurred in this case as to the prior prison term enhancement resulting from No. A588238. Further, no order striking the prior prison term enhancement pursuant to former section 1170.1, subdivision (h) occurred either. Not only did the trial court never purport to do so, but there was no on-the-record statement of mitigating circumstances as required by former section 1170.1, subdivision (h). Hence, the refusal to sentence was legally unauthorized (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, 66 Cal.Rptr.2d 423, 941 P.2d 56; People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040) and depending on the circumstances, the Attorney General is correct insofar as it is contended that limited resentencing may be in order concerning the prior prison term enhancement resulting from No. A588238. (People v. Irvin, supra, 230 Cal.App.3d at p. 193, 281 Cal.Rptr. 195 [remand to permit trial judge to strike or impose a prior prison term enhancement]; People v. Cattaneo, supra, 217 Cal.App.3d at p. 1589, 266 Cal.Rptr. 710 [remand to permit trial judge to strike or impose drug enhancement pursuant to Health & Saf.Code, § 11370.4].)

2. The Power to Strike Pursuant to Section 1385, Subdivision (a)

The Attorney General argues that the trial judge must impose sentence as to the remaining prior prison term enhancement pursuant to section 667.5, subdivision (b). We agree with defendant that the trial court may, on remand, determine whether to strike the remaining prior prison term enhancement arising from No. A588238 pursuant to section 1385, subdivision (a). Defendant stands convicted of a single count of forgery ³ and the trial court has declined to impose a section 667.5, subdivision (b) enhancement. The Attorney General argues that since enhancements must run consecutively pursuant to sections 667, subdivision (e)(2), and 1170.12, subdivision (c)(2) we may not remand to allow the trial judge to exercise her discretion to strike the remaining prior prison term enhancement arising from No. A588238.

The Attorney General's argument is as follows. Section 667, subdivision (e)(2) states in pertinent part: "(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [p] ... (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [p] ... (ii) Imprisonment in the state prison for 25 years. [p] ... (B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law." The same language appears in section 1170.12, subdivision (c)(2).

The Attorney General argues that the foregoing language has been interpreted in People v. Hendrix (1997) 16 Cal.4th 508, 515, 66 Cal.Rptr.2d 431, 941 P.2d 64, as follows when the Supreme Court was discussing the scope of consecutive sentencing duties in cases involving recidivists with two or more prior serious felony convictions: "We conclude the phrase '[a]ny other term' in subdivision (e)(2)(B) refers back to the language of subdivision (e), which provides that the three-strike punishment is 'in addition to any other enhancement or punishment provisions which may apply.' Thus, when subdivision (e)(2)(B) states, 'The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law,' it merely provides that the indeterminate term must be imposed consecutive to any other...