People v. Lee

• Decision Date: 31 October 2017
• Docket Number: F072173
• Citation: 224 Cal.Rptr.3d 706,16 Cal.App.5th 861
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pao Cherta LEE, Defendant and Appellant.

16 Cal.App.5th 861

224 Cal.Rptr.3d 706

The PEOPLE, Plaintiff and Respondent,

v.Pao Cherta LEE, Defendant and Appellant.

F072173

Court of Appeal, Fifth District, California.

Filed October 31, 2017

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY, Acting P.J.Defendant Pao Cherta Lee was convicted by jury trial of four felonies after he was found driving a stolen vehicle. On appeal, he contends the trial court erroneously believed it lacked discretion to reduce his convictions to misdemeanors under Penal Code section 17, subdivision (b)¹ ( section 17(b) ) because of a section 666.5 allegation. We agree with defendant. Accordingly, we vacate the sentence and remand to the trial court for reconsideration and resentencing.

PROCEDURAL SUMMARY

On February 18, 2015, a jury found defendant guilty of unlawfully driving or taking a vehicle ( Veh. Code, § 10851, subd. (a) ; count 1), receiving a stolen vehicle (§ 496d, subd. (a); count 2), and carrying a concealed dirk or dagger (§ 21310; counts 3 & 4). The jury also found true an allegation, pursuant to sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii),² that defendant was armed with a deadly weapon during the commission of each offense. In connection with counts 1 and 2, defendant admitted having suffered two prior Vehicle Code section 10851, subdivision (a) convictions pursuant to section 666.5, subdivision (a). He also admitted, as to all counts, having suffered four prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The trial court sentenced defendant to 25 years to life on each count, but stayed the terms on counts 2 through 4 pursuant to section 654.

On August 17, 2015, defendant filed a notice of appeal.

FACTS

On August 18, 2013, Michael A., the owner of a 1999 red Honda Civic, got up in the morning and discovered his car was missing from the driveway. He called the police immediately.

On August 24, 2013, around midnight, Fresno Police Officer Vincent Zavala was driving behind a 1999 red Honda Civic driven by defendant. Zavala checked the license plate number and learned the car was stolen. He requested backup, then conducted a traffic stop. He told defendant to remove the keys and drop them outside the door. He ordered defendant out of the car and arrested him. When Zavala searched defendant, he found a sheathed, fixed-blade knife in his right rear pocket and another knife in his right front pocket. When Zavala searched the car, he noticed the center console of the dashboard had been cracked and pulled away, and the stereo had been forcibly removed. The key chain held a Toyota car key and two nonvehicle keys, but no Honda key. Zavala tried all the keys in the Honda ignition. Only the Toyota key worked, but it did not fit easily. It required force and inserted only halfway.

Zavala read defendant his Miranda³ rights and defendant agreed to talk. He said the car belonged to him; his cousin had given it to him for free. Zavala told him he thought that was weird. Defendant said he had had the car for three weeks. Zavala told him that was not possible because it had been reported stolen only about seven days earlier. Defendant said he got the key from his cousin and was using it to drive the car. When Zavala told him it was a Toyota key that only inserted halfway, defendant said he did not know much about cars. He said he was homeless.

Zavala testified that Hondas from the 1990's are easy to manipulate and were, at the time of trial, the most stolen car in Fresno. When he inspected the Honda's ignition, he saw it was loose and bore small pry marks, indicating it had been modified. Normally, it would not be possible to force a Toyota key into a Honda ignition.

DISCUSSION

I. Section 17(b)

A "wobbler" is an offense that, in the trial court's discretion, may be punished as either a felony or a misdemeanor. ( § 17(b) ;⁴ People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 974, 60 Cal.Rptr.2d 93, 928 P.2d 1171 ( Alvarez ).) All four of defendant's offenses in this case were wobblers. (See Veh. Code, § 10851, subd. (a) ; §§ 496d, subd. (a), 21310.)

The trial court has the sole discretion, under section 17(b), to treat a wobbler as a felony or a misdemeanor for sentencing purposes. ( Alvarez, supra, 14 Cal.4th at p. 977, 60 Cal.Rptr.2d 93, 928 P.2d 1171.) "By its terms, [ section 17(b) ] sets a broad generic standard." ( Ibid. ) "[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.410]."⁵ ( Id. at p. 978, 60 Cal.Rptr.2d 93, 928 P.2d 1171 fn. omitted.) "As a general matter, the court's exercise of discretion under section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler ‘in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, [felony punishment].’ " ( People v. Park (2013) 56 Cal.4th 782, 790, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)

To prove an abuse of discretion, " ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.’ " ( Alvarez, supra, 14 Cal.4th at pp. 977-978, 60 Cal.Rptr.2d 93, 928 P.2d 1171.) To meet this burden, the defendant must "affirmatively demonstrate that the trial court misunderstood its sentencing discretion." ( People v. Davis (1996) 50 Cal.App.4th 168, 172, 57 Cal.Rptr.2d 659.) When "the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion." ( People v. Brown (2007) 147 Cal.App.4th 1213, 1228, 54 Cal.Rptr.3d 887.) If the record is silent, however, the defendant has failed to sustain his burden of proving error, and we affirm. ( People v. Davis, at p. 172, 57 Cal.Rptr.2d 659.)

II. Background

At the sentencing hearing on July 20, 2015, defense counsel raised a Romero⁶ motion, requesting that the trial court exercise its discretion pursuant to section 1385 to dismiss prior strike convictions. The prosecutor countered as follows:

"So the People don't believe really this is the kind of offense that in its nature and circumstances falls out of that spirit [of the Three Strikes law]. We think that this is the kind of serial offender thought of by the Three Strikes Law. There's another note that [defense counsel] makes, which is that both the car and the knives could be considered misdemeanor conduct. That's true for the knives, they are wobblers. But as charged[,] the auto thefts in this case are not wobblers. Because he has prior auto thefts[,] these are straight felony offenses."

Ultimately, the trial court declined to dismiss any prior strike convictions. At that point, defense counsel asked if the court would consider applying section 17(b). The following occurred:

"[DEFENSE COUNSEL]: Your Honor, could the court consider [ section] 17(b) ?

"THE COURT: As to everything that this jury found him guilty of?

"[PROSECUTOR]: Your Honor, the Court's not capable of 17(b)'ing Counts One and Two because of the [section] 666.5 enhancement.

"THE COURT: Well, you know, I was going to say, first of all, as I understood it, the only thing [ section 17(b) ] would apply to are Counts Three and Four. Nevertheless, the jury returned verdicts on Counts One and Two, which relate to driving the stolen vehicle and possessing the stolen vehicle knowing that it was stolen.

"Now, I understand why Probation is recommending ... application of Penal Code Section 654, but let's take a look at the facts of this case. You've got a car that is obviously altered to allow unauthorized people to be driving it. He has a history that dates back to the '80s for the same thing. So his denial to the Probation Department as well as his denials in the course of the case here just don't have any validity in this court's estimation. He damned knew well that the car was stolen. He was a repeat car thief. And he may have acquired it from some third party that was close to him but, nevertheless, he knew the car was stolen. He was driving it. He had weapons in his possession when he was doing it.

"Now, the court is going to essentially adopt the factual statements of the Probation Department as they capsulize the proceedings of evidence in trial this court heard personally. I'm also going to adopt the probation report's analysis of the Rules of Court regarding probation eligibility, the circumstances in aggravation and mitigation both as to the offenses and as to the defendant, and I will point out here that under [rule] 4.423 [,] circumstances in mitigation relating to the defendant, I will point out that the court has considered and has in mind the unfortunate life history that you have presented as to your client and that has not been lost

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