People v. Carmony

• Citation: 33 Cal.4th 367,92 P.3d 369,14 Cal.Rptr.3d 880
• Decision Date: 08 July 2004
• Docket Number: No. S115090.,S115090.
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Keith Ishmeal CARMONY, Defendant and Appellant.

14 Cal.Rptr.3d 880

92 P.3d 369

33 Cal.4th 367

The PEOPLE, Plaintiff and Respondent, v. Keith Ishmeal CARMONY, Defendant and Appellant.

No. S115090.

Supreme Court of California.

July 8, 2004.

Victor S. Haltom, Sacramento, under appointment by the Supreme Court, for Defendant and Appellant.

Jack Funk, Assistant Public Defender; and Michael Vitiello for California Public Defenders Association as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janet E. Neeley, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

In this case, defendant Keith Ishmeal Carmony pled guilty to one count for failure to register in violation of Penal Code section 290, subdivision (g)(2)¹ and admitted that he had suffered three prior "strikes" under the three strikes law. (§§ 667, subd. (b)-(i), 1170.12.) Carmony moved to dismiss these strikes pursuant to section 1385, but the trial court refused to do so and sentenced him to 26 years to life in accordance with the three strikes law. We now consider what standard of review should be applied to the trial court's decision not to dismiss or strike a sentencing allegation under section 1385 and whether, under this standard, the court erred in making this decision. We conclude that the court's decision not to strike a prior conviction allegation should be reviewed under the deferential abuse of discretion standard and that the court did not abuse its discretion in refusing to do so.

I.

Due to a 1983 conviction for oral copulation by force or fear, or with a minor under age 14 (§ 288a, subd. (c)), Carmony had to register as a sex offender pursuant to section 290. In this case, Carmony failed to register with the Redding Police Department within five days of his birthday—October 22, 1999—even though he had registered on September 16 and again on September 23 in order to notify the police of his new address.² At the time of the offense, Carmony already had two prior convictions for failing to register but had registered with the Redding Police Department in 1995, 1996, 1998 and 1999. Upon discovering that Carmony had failed to register, his parole agent asked him to bring his check stubs to her office. When Carmony reported to the parole office, the agent arrested him.

The criminal complaint charged Carmony with one count of willful failure to register in violation of section 290, subdivision (g)(2). The complaint also alleged one prior felony conviction (§ 667.5, subd. (b)) and three prior serious and/or violent felony convictions—the strikes (§ 1170.12).

Carmony's first strike arose from a 1983 conviction³ for oral copulation by force or fear, or with a minor under age 14. (§ 288a, subd. (c).) In this crime, an intoxicated Carmony became angry with his girlfriend at the time and, in apparent retaliation, picked up her nine-year-old daughter from school and "basically raped her."

Carmony's second and third strikes arose from two 1993 convictions for assault with a deadly weapon or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) In the first incident, Carmony punched and kicked his girlfriend and caused her to miscarry. In the second incident, he punched another girlfriend and cut her hand with a knife.

Carmony ultimately pled guilty to the one count of failure to register (§ 290, subd. (g)(2)), and admitted he had suffered three prior strikes (§ 1170.12) and one prior prison term (§ 667.5, subd. (b)). The court referred the matter to the probation department for a presentence report and asked it to recommend whether the court should dismiss any strikes pursuant to People v. Cluff (2001) 87 Cal.App.4th 991, 105 Cal.Rptr.2d 80 (Cluff).

The probation department reported that Carmony was 40 years old at the time of the offense and married. He had a nine-year-old daughter from a previous common law relationship who resided with her mother. According to the department, Carmony had a long history of alcohol and drug abuse, and alcohol had apparently contributed to all of his prior offenses. Although Carmony had never participated in a substance abuse treatment program, he had attended Alcoholics Anonymous meetings. And, prior to committing the current offense, he had obtained a job and performed well, but had quit after only a short time.

The department also noted that Carmony had received written notice of his obligation to register on several occasions, including when he registered on September 23—less than one month before his birthday. His parole agent also allegedly called him on his birthday to remind him of his duty to register. Carmony, however, disputed this.

Finally, the department reported that Carmony had multiple juvenile adjudications and had committed numerous parole violations. His adult criminal record was also lengthy and included numerous other convictions in addition to his three strike offenses and his two prior convictions for failure to register. Specifically, Carmony suffered: (1) two separate convictions for second degree burglary in 1977 and 1978 (Pen.Code, § 459); (2) a conviction for petty theft with a prior in 1985 (Pen.Code, § 666); (3) two separate convictions for driving under the influence in 1988 and 1992 (Veh.Code, § 23152, subd. (a)); (4) two separate convictions for violating Penal Code section 148 in 1988 and 1991; and (5) a conviction for trespassing (Pen.Code, § 602, subd. (1)) and petty theft (Pen. Code, § 488) in 1990.

At the end of its presentence report, the probation department suggested that the court could appropriately strike one of Carmony's prior serious and/or violent felony convictions in light of Cluff, supra, 87 Cal.App.4th 991, 105 Cal.Rptr.2d 80. But the court would have to strike two of these convictions in order to make a difference in his sentence. Accordingly, the department recommended that Carmony receive a sentence of 26 years to life.

After receiving the report, Carmony moved to dismiss two of his strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero) and Cluff, supra, 87 Cal.App.4th 991, 105 Cal.Rptr.2d 80. The trial court declined. According to the court, Carmony had a lengthy criminal record "with a yearly visit to state prison most of his adult life." The court also noted that Carmony could not plausibly claim that he did not know about his duty to register within five days of his birthday. Based on these facts and Carmony's poor work record and lack of future prospects, the court concluded that he "certainly" fell "within the spirit of . . . the 3-strikes law."

The Court of Appeal reversed, holding that the trial court abused its discretion by refusing to dismiss any of Carmony's strikes. Although the court "acknowledged that [Carmony's] criminal record [was] serious," it found that his current offense "must be characterized as `the most technical violation of the section 290 registration requirement we have seen.'" The court further concluded that "commission of the current offense bears little indication that defendant has recidivist tendencies to commit other offenses" and that the offense "was passive and without practical impact in a way that many misdemeanor offenses and minor drug crimes are not." Based solely on the "nature and circumstances of the present offense," the Court of Appeal found that Carmony fell outside the spirit of the three strikes law and reversed.⁴ In remanding for resentencing, the court noted that Carmony did not fall "entirely outside the spirit of the law" and suggested that the trial court "may wish to consider dismissing two prior strikes and sentencing defendant as a second-strike offender."

We granted review.

II.

A.

Under section 1385, subdivision (a), a "judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." "In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, `in furtherance of justice' pursuant to . . . section 1385(a)." (People v. Williams (1998) 17 Cal.4th 148, 158, 69 Cal.Rptr.2d 917, 948 P.2d 429 (Williams).) We further held that "[a] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is" reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

We did not, however, determine whether a trial court's decision not to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewable for abuse of discretion. Most Courts of Appeal have held that such a decision is reviewable for abuse of discretion.⁵ But one Court of Appeal has stated that "[t]here is no authority granting the appellate courts the ability to review a court's informed decision to not exercise its section 1385 power in the furtherance of justice." (People v. Benevides (1998) 64 Cal.App.4th 728, 735, 75 Cal.Rptr.2d 388, fn. omitted (Benevides).) According to Benevides, a court should "not reweigh the circumstances of the case to determine whether, in [its] opinion, the trial court should have, or properly refrained from, exercising its discretion to strike a prior conviction." (Id. at p. 733, fn. 6, 75 Cal.Rptr.2d 388.) Rather, review is available only if the "court's refusal or failure to exercise its section 1385 discretion to dismiss or strike is based on a mistaken belief regarding its authority to do so" (id. at p. 735, 75 Cal.Rptr.2d 388), or if the "court expresses clearly improper reasons for refusing to exercise its discretion" (ibid., fn. 7). We now resolve this...