People v. Casa

• Decision Date: 22 December 1995
• Docket Number: No. B090308,B090308
• Citation: 48 Cal.Rptr.2d 715,41 Cal.App.4th 701
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 41 Cal.App.4th 701, 46 Cal.App.4th 190, 51 Cal.App.4th 80 41 Cal.App.4th 701, 46 Cal.App.4th 190, 51 Cal.App.4th 80, 95 Cal. Daily Op. Serv. 9895, 95 Daily Journal D.A.R. 17,185 The PEOPLE, Plaintiff and Appellant, v. Sidney CASA, Defendant and Respondent.

Page 715

48 Cal.Rptr.2d 715

Previously published at 41 Cal.App.4th 701, 46 Cal.App.4th 190, 51 Cal.App.4th 80

41 Cal.App.4th 701, 46 Cal.App.4th 190, 51 Cal.App.4th 80,

95 Cal. Daily Op. Serv. 9895,

95 Daily Journal D.A.R. 17,185

The PEOPLE, Plaintiff and Appellant, v. Sidney CASA, Defendant and Respondent.

No. B090308.

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

Dec. 22, 1995.

Review Granted March 14, 1996.

Review Transferred to the Court of Appeal Feb. 25, 1998.

Gil Garcetti, Los Angeles District Attorney, Frank Elmer Sundstedt Jr., Chief Deputy District Attorney, Patrick D. Moran, Otis L. Hubbard, Deputy District Attorneys, for Plaintiff and Appellant.

Michael P. Judge, Los Angeles Public Defender, Albert J. Menaster, Alex Ricciardulli, Tracy Mooney, Deputy Public Defenders, for Defendant and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

The People of the State of California appeal after the trial court only imposed an eight-year sentence on defendant, Sidney Casa, a recidivist with a lengthy record of felony and misdemeanor convictions. Defendant pled no contest to two counts of cocaine possession in violation of Health and Safety Code section 11350 and admitted that three prior serious felony conviction allegations (PEN.CODE, § 667¹, subd. (b)-(i) were true. The trial court later dismissed two of the three prior serious felony conviction findings pursuant to section 1385 at the probation and sentence hearing. The People contend and we conclude that the trial court exceeded the scope of its allowable sentencing discretion in dismissing or striking two of the three prior felony conviction findings. We remand to allow defendant the opportunity to withdraw his no contest plea and the admissions of the prior serious felony convictions.

II. FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report and the preliminary hearing transcript, on April 28, 1994, defendant was observed by two Los Angeles Police officers who were conducting an unrelated investigation. The officers concluded defendant might have been under the influence of heroin. As they walked towards defendant, he dropped two rocks of cocaine. Defendant then said: "You got me. I just got out of prison." Defendant then said, "I need help...." Defendant was thereupon arrested. While at the police station, the officers determined defendant was not actually under the influence of heroin "at that time...." However, defendant had "several" "needle puncture wounds"; one of which was "approximately a day old." The two rocks of cocaine defendant dropped weighed a total of .61 grams.

Five days later, on May 3, 1994, while released on his own recognizance, defendant was observed in an area with a high incidence of: narcotics activity; street robberies; and gang violence. A van traveling on Marigold Street stopped. Defendant was observed to walk up to the van. Defendant gave an object to the van driver. After handing the object to the van driver, defendant quickly turned and placed what was later determined to be 3 rocks of cocaine with a total weight of .07 grams underneath a bush "on some concrete." The cocaine was placed in such a manner a person walking on the sidewalk would not be able to see the three rocks of cocaine. Los Angeles Police Officer Todd Rhinegold, who was assigned to Metropolitan Division, concluded based upon the foregoing facts that defendant was engaging in "behavior consistent with narcotics trafficking." Defendant was then arrested.

After he was held to answer at the conclusion of two separate preliminary hearings, a consolidated information was filed. In count 1 of the consolidated information, defendant was charged with cocaine possession in violation of Health and Safety Code section 11350. In count 2, defendant was also charged with cocaine possession in violation of Health and Safety Code section 11350. Additionally, as to count 2, it was alleged that defendant committed the offense while released on his own recognizance within the meaning of section 12022.1, subdivision (b) after his April 28, 1995, arrest on cocaine possession charges. As to both counts in the consolidated information, the following additional special allegations were pled: defendant had previously been convicted of serious felonies on three occasions within the meaning of section 667, subdivisions (b)-(i); he had served prior prison terms on five occasions within the meaning of section 667.5, subdivision (b); he had twice been convicted of drug offenses within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c); and he had been convicted of felonies on six prior occasions within the meaning of section 1203, subdivision (e)(4).

After defendant entered a plea of not guilty to these charges and denied the special allegations, his case was set for trial on November 2, 1994. When the case was called on November 2, 1994, defense counsel announced that defendant wanted to change his plea. It bears emphasis that throughout the November 2, 1994, proceedings, the parties assumed, albeit erroneously, that defendant's maximum potential sentence was 31 years to life. As will be noted later, defendant's maximum potential sentence was actually significantly greater. (See fn. 2, infra.) The trial court indicated: "For the record, the court has discussed this matter with counsel in chambers and has indicated a tentative sentence in this case of eight years. The court would accept an open plea with the understanding that if the court, upon reviewing the probation report, feels that it could not, because of the information therein contained or any other information, abide by the eight-year agreement, the court would permit the defendant to withdraw his plea." The prosecutor objected to the proposed settlement and stated: "In this case, your honor, it remains the People's position that the court does not have legal authority under the clear language of Penal Code section 667(b) through (i), and the language of Penal Code section 1385(b), to strike strikes with the intention of effecting a plea bargain in the case. This defendant does have a very long, spectacular, and more or less continuous criminal record since 1981. So we object for the record to the striking of any strikes." Defendant then entered pleas of "no contest" to both counts and admitted the truth of the special allegations including the three prior convictions for serious felonies.

On November 16, 1994, the probation and sentence hearing was held. The probation report and other documents in the superior court files indicated, in addition to the factual matters previously described, the following. Defendant, who had used six different aliases and had four social security numbers, was first convicted of petty theft as a misdemeanor on March 12, 1980, and was placed on three years probation upon the condition he serve 45 days in the county jail. While on misdemeanor probation, he was convicted shortly before September 11, 1981, of bank robbery in violation of 18 United States Code section 2113(a) and sentenced to between four and six years in the federal penitentiary. He was paroled on February 12, 1985. While still on federal parole, on October 1, 1985, he was arrested for being under the influence of phencyclidine in violation of Health and Safety Code section 11550, subdivision (b). While awaiting trial on the misdemeanor under the influence charge and still subject to federal parole supervision, on November 30, 1985, defendant was arrested and charged with: robbery in violation of section 211; the unlawful taking of a motor vehicle (Veh.Code, § 10851, subd. (a)); grand theft of an automobile (former § 487, subd. 3; Stats.1982, ch. 375, § 1, p. 1693); and being under the influence of a controlled substance. (Health & Saf., Code § 11550, subd. (b).) On January 8, 1986, he was sentenced to the county jail on the under the influence charge for which he had previously been arrested on October 1, 1985. On January 16, 1986, defendant was placed on 3 years probation on the condition he serve 365 days in county jail as a result of the aforementioned state robbery charge. As to the state robbery charge, defendant indicated he was under the influence of phencyclidine and along with a group of other persons, he "took a car." On July 25, 1986, defendant was found in violation of his federal bank robbery parole.

On May 2, 1987, while on felony probation, defendant was arrested for possession of narcotics paraphernalia in violation Health and Safety Code section 11364. On May 4, 1987, defendant pled guilty to the narcotics paraphernalia charge and was placed on summary probation. On May 26, 1987, while still on felony probation, defendant was arrested for trespassing in violation of section 602, subdivision (l ) and placed on summary probation on May 27, 1987, after he pled guilty.

While still on felony probation on June 29, 1987, defendant was arrested for trespassing in violation of section 602, subdivision (1). On July 5, 1987, defendant was once again arrested for trespassing. (§ 602, subd. (1).) On the next day, July 6, 1987, defendant was convicted and placed on 24 months probation on the condition that he serve 10 days in the county jail. On August 26, 1987, defendant was found in violation of his state robbery probation and was sentenced to prison for two years. On January 27, 1988, defendant was finally convicted in connection with the misdemeanor trespassing charge of June 29, 1987. He was placed on 24 months probation and 1 of the probation terms was that he serve 5 days in county jail.

On January 30, 1988, defendant was paroled from state prison. On February 1, 1988, the day after he was paroled, defendant was arrested on a drug charge. His parole was revoked and on February 11, 1988, he was returned to state prison custody. On June 26, 1988, after he was once again released from prison, defendant was arrested for assault with a deadly...