People v. Espinoza

• Citation: 159 Cal.Rptr. 894,99 Cal.App.3d 59
• Decision Date: 27 November 1979
• Docket Number: Cr. 10230
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner and Appellant, v. Vincent Barreda ESPINOZA, Respondent.

Page 894

159 Cal.Rptr. 894

99 Cal.App.3d 59

The PEOPLE of the State of California, Petitioner and Appellant, v. Vincent Barreda ESPINOZA, Respondent.

Cr. 10230.

Court of Appeal, Fourth District, Division 2, California.

Nov. 27, 1979.

Hearing Denied Feb. 7, 1980.

James M. Cramer, Dist. Atty., and Dennis S. Tilton, Deputy Dist. Atty., for petitioner and appellant.

Charles E. Ward, Public Defender, and David W. Negus, Deputy Public Defender, for respondent.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler and Michael D. Wellington, Deputy Attys. Gen., for amicus curiae.

OPINION

KAUFMAN, Associate Justice.

On September 1, 1978, Vincent Barreda Espinoza (defendant) was charged by information with burglary (Pen.Code, § 459), allegedly committed August 10, 1978. As the basis for enhancement of defendant's sentence should he be convicted of the charged offense, it was also alleged in the information that defendant had suffered three prior felony (burglary) convictions (one on December 26, 1975, and two on April 15, 1976) and had served a term of imprisonment on account of each of them.

After the case had been assigned for trial but prior to the commencement of trial, defendant moved the court to "make a determination as to the truth or falsity of the three alleged prior convictions." Thereupon the parties entered into a stipulation in substance that defendant had suffered the prior convictions as alleged in the information and was sentenced to prison on account of them; ¹ that in January 1978 he was paroled from prison; and that on September 7, 1978, his parole was revoked and he was recommitted to prison for a period of six months. Although it was not expressly set forth in the stipulation, the parties and the court appear to have proceeded on the premise that the revocation of defendant's parole was based upon the conduct giving rise to the burglary charged in the information. Accordingly, so shall we.

Based upon the stipulated facts and particularly the fact that defendant's parole had been revoked and he had been recommitted to prison, the court determined that defendant had not "completed," as that term is used in subdivision (g) of Penal Code section 667.5, serving the sentence on his prior burglary convictions and that, therefore, any sentence he might receive in the event of his conviction on the new burglary charge could not be enhanced under the statute on the basis of his prior burglary convictions. (All statutory references will be to sections of the Penal Code unless otherwise specified.)

Having so concluded, the court indicated it intended to find the allegations concerning defendant's service of the prior sentences untrue. The district attorney objected to the procedure proposed by the court, stating that he had not waived jury trial on the "factual" question. He suggested that if the court adhered to its interpretation of the statute, it should strike the allegations in the information pertaining to the prior convictions and sentences. Counsel for defendant indicated he had no objection to striking the allegations, and the court acceded: "Put it this way: Because the Court feels that under these circumstances, that the Defendant has not completed his term of imprisonment for the offense set forth in these allegations, the Court will order the allegations stricken."

The People appeal from that order of the court. ²

On April 11, 1979, pending this appeal, defendant again pled guilty pursu ant to a new plea bargain. However, as part of the disposition, it was agr eed that if the trial court decision were finally reversed on appeal, "one of the three priors adjudicated on 10-5-78 . . . be deamed (sic) true" and that "(t)his charge will be consecutive . . . ." Thus, the appeal has not been mooted.

The People petitioned for an appropriate writ (mandate, prohibition or certiorari) to determine the invalidity of the court's order, but the petition was denied by this court without opinion on November 16, 1976. (4 Civ. 20652.)

1 On appeal the People contend that the trial court's order striking the allegations pertaining to defendant's prior felony convictions and the sentence served on account of them was erroneous and based upon a misinterpretation by the court of the applicable statutory provisions. Defendant contends that the order complained of is nonappealable and, alternatively, if it is appealable, the order was proper and based upon a correct interpretation of the statutory provisions.

Appealability of the Order

In support of their contention that the court's order is appealable, the People rely primarily upon subdivision (a)(1) of section 1238 authorizing an appeal by the People from "(a)n order setting aside the indictment information or complaint" and People v. Burke,supra, 47 Cal.2d at pages 53-54, 301 P.2d 241, ³ in which the California Supreme Court indicated that an order striking the allegation of a prior conviction contained in an information for the purpose of enhancing sentence "was in substance 'an order setting aside (a part of) the . . . information' " (47 Cal.2d at p. 53, 301 P.2d at p. 246) and, therefore, an appealable order under subdivision (a)(1) of section 1238.

Defendant contends that the language in Burke relied on by the People was merely dicta, was unnecessary to the decision, and does not represent the current view of our high court.

We cannot agree that that portion of the Burke decision relied on by the People was nothing more than dicta. Confronted with the argument of the People in that case that while a court has the power to strike its own findings, it may not strike a prior conviction admitted by defendant, the court held that the People had acquiesced in the court's striking the prior by failing to object at the time the order was made and failing to appeal from the order. (47 Cal.2d at pp. 53-54, 301 P.2d 241.) While the court did observe in the opinion that "(t)he admission (of the prior commitment), conceivably, could have been inadvertent, mistaken or deliberately false; it is, at most, evidence which must be considered in the judicial process" (47 Cal.2d at p. 53, 301 P.2d at p. 246), it drew no conclusion from that observation, and its determination that the People had acquiesced in the order by failing to object to it and failing to appeal from it appears to be at the very least an alternative ground and, probably, the primary basis for the court's holding on the point.

The People also place some reliance on a footnote in People v. Drake, 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, in which the court referred to that part of the Burke decision relied on by the People and distinguished the Burke decision from the case then before it by noting that "in People v. Valenti (1957) 49 Cal.2d 199, 207, 316 P.2d 633, we emphasized that the considerations involved in the appeal of an order striking a prior conviction are quite different from those involved in the appeal of an order which goes to the 'cause of action itself,' as does the order in this case." (19 Cal.3d at p. 756, fn. 7, 139 Cal.Rptr. at p. 723, 566 P.2d at p. 625.)

It is true as defendant points out that in Drake the court did not expressly approve Burke but, rather, distinguished it. However, the court's reference to the Valenti decision emphasizing the different considerations involved in an appeal of an order striking a prior conviction from those involved in an appeal of an order going to the substance of the offense was made with apparent approval, and in that part of the Valenti opinion the court stated in pertinent part: "The order striking the allegation of prior conviction in Burke was appealable, not because it was made 'in furtherance of justice,' but because, as we there stated (p. 53(8) of 47 Cal.2d, p. 246 of 301 P.2d), it 'was in its nature one of the orders specified as appealable either by paragraph 1 or by paragraph 6 of section 1238 of the Penal Code. That statute provides that the People may appeal "1. From an order setting aside the indictment, information or complaint; . . . 6. From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed. " The trial court's action was in substance "an order setting aside (a part of) the . . . information. " ' Since the Burke case order did not involve either the cause of action itself or any question of jeopardy it was clearly proper to hold, as we did, that it 'was in substance " an order setting aside (a part of) the . . . information" ' and, consequently, that as to appealability it should be governed by the rules applicable to orders setting aside the information rather than by those applicable to orders dismissing the action." (People v. Valenti, 49 Cal.2d 199, 207, 316 P.2d 633, 637-38.)

Thus the most recent pronouncements of the California Supreme Court tend to confirm its adherence to the determination in Burke that an order striking an allegation of a prior conviction set forth in an information for the purpose of enhancing punishment is an appealable order. (See also People v. Braeseke, --- Cal.3d ---, ---, ---, 159 Cal.Rptr. 684, --- P.2d ---.)

The same conclusion was recently reached by the court in People v. Davis, 94 Cal.App.3d 215, 156 Cal.Rptr. 395. In that case the municipal court had stricken an allegation of prior conviction on the ground the prior conviction was constitutionally invalid. The People appealed, and, on transfer of the case to the Court of Appeal from the Appellate Department of the Los Angeles Superior Court, after a thorough discussion of the pertinent statutes and decisions, it was held that the order was appealable. (94 Cal.App.3d at pp. 217-221, 156 Cal.Rptr. 395.) Of course, the governing statute there was section 1466 relating to appeals from the municipal court in criminal cases, whereas in the case at bench the governing statute is section...