People v. Mosley

• Decision Date: 03 March 1997
• Docket Number: No. B104932,B104932
• Citation: 53 Cal.App.4th 489,62 Cal.Rptr.2d 268
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1612, 97 Daily Journal D.A.R. 3058 The PEOPLE, Plaintiff and Respondent, v. Shonte MOSLEY, Defendant and Appellant.

Page 268

62 Cal.Rptr.2d 268

53 Cal.App.4th 489, 97 Cal. Daily Op. Serv. 1612,

97 Daily Journal D.A.R. 3058

The PEOPLE, Plaintiff and Respondent, v. Shonte MOSLEY, Defendant and Appellant.

No. B104932.

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

March 3, 1997.

As Modified March 20, 1997.

Review Denied May 21, 1997.

Thomas F. Coleman, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, Jaime L. Fuster, and David C. Cooke, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, Presiding Judge.

Defendant, Shonte Mosley, appeals his multiple convictions in which he was found to have been previously convicted of a serious felony conviction within the meaning of PENAL CODE SECTIONS 667¹, subdivisions (b) through (i) and 1170.12. He contends he is entitled to resentencing so that the trial judge can exercise his discretion pursuant to section 1385, subdivision (a) to strike the prior serious felony conviction as mandated by People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, footnote 13, 53 Cal.Rptr.2d 789, 917 P.2d 628. The jury returned its verdicts on July 26, 1996, 36 days after the filing of the Romero opinion. The sentencing in the present case occurred on August 12, 1996, 53 days after the filing of the Romero decision. Therefore, we conclude based upon the analysis in the decision In re Cortez (1971) 6 Cal.3d 78, 83-85, 98 Cal.Rptr. 307, 490 P.2d 819 that footnote 13 of the Romero opinion is inapplicable to the present case.

On June 20, 1996, the California Supreme Court issued its opinion in People v. Superior Court (Romero), supra, 13 Cal.4th at pages 504-532, 53 Cal.Rptr.2d 789, 917 P.2d 628 holding that a convicted felon subject to the enhanced recidivist sentencing provisions of sections 667, subdivision (b) through (i) and 1170.12 was entitled to have the trial judge exercise discretion pursuant to section 1385, subdivision (a) and determine whether to strike a prior serious felony conviction in the interests of justice. The Supreme Court addressed the issue of the retroactivity of its decision in footnote 13 of its opinion and held: "Our holding, which relates only to sentencing, is fully retroactive. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882, 667 P.2d 686]; People v. Tenorio [ (1970) ] 3 Cal.3d [89,] at p. 95, fn. 2 [89 Cal.Rptr. 249, 473 P.2d 993].) A defendant serving a sentence under the Three Strikes law (§ 667, subds. (b)-(i); § 1170.12) imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations in furtherance of justice pursuant to section 1385(a), may raise the issue on appeal, or if relief on appeal is no longer available, may file a petition for habeas corpus to secure reconsideration of the sentence. Such a petition should be filed in the sentencing court. (People v. Tenorio, supra, 3 Cal.3d at p. 95, fn. 2 [89 Cal.Rptr. 249, 473 P.2d 993].) Such a petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations. (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686.)" (People v. Superior Court (Romero), supra, 13 Cal.4th at pages 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Filed on June 20, 1996, the Romero opinion became final when the rehearing petition was denied on August 21, 1996. (Cal. Rules of Court, rule 24(a).)

Before proceeding to an analysis of the application of the Romero opinion to the present case, it is appropriate to review the genesis of the procedure set forth in footnote 13 of that decision which allows for post-judgment attacks on sentences where the record fails to reflect a trial court was aware of its authority to impose a particular disposition over the prosecutor's objection. As will be noted, in footnote 13, the Supreme Court adopted its long-standing practice of allowing post-judgment attacks on sentences when it established a retroactive rule invalidating a statute which prohibited a trial judge from granting leniency to a criminal defendant without prosecutorial concurrence. In numerous other situations, the California Supreme Court has defined the retroactive application of its opinions invalidating mandatory sentence provisions in certain sentencing statutes and set forth a process to allow previously sentenced defendants to challenge their sentences or other dispositions in post-judgment motions or habeas corpus petitions. (E.g. People v. Craft (1986) 41 Cal.3d 554, 562, 224 Cal.Rptr. 626, 715 P.2d 585 [sex offender sentenced under § 667, subd. (d) entitled to challenge trial judge's unawareness of availability of more lenient § 667, subd. (c) sentencing format by means of post-judgment habeas corpus petition]; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686 [habeas corpus procedure as described in the decision of In re Cortez, supra, 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819 may be used to challenge sentences prior to issuance of Belmontes opinion where record was unclear as to whether trial judge was aware of § 664, subd. (c) sentencing discretion in certain sex cases]; People v. Navarro (1972) 7 Cal.3d 248, 264, 102 Cal.Rptr. 137, 497 P.2d 481 [narcotics addicts who were denied a commitment to the California Rehabilitation Center by invalidated prosecutorial concurrence requirement could challenge sentences under specified circumstances]; People v. Hannon (1971) 5 Cal.3d 330, 340, fn. 7, 96 Cal.Rptr. 35, 486 P.2d 1235 [minors tried as adults who were returned from youth authority could not be sentenced to prison and such sentences could be challenged by means of a post-judgment habeas corpus petition]; People v. Tenorio (1970) 3 Cal.3d 89, 95, fn. 2, 89 Cal.Rptr. 249, 473 P.2d 993 [habeas corpus may be used to challenge a sentence if the trial judge was unaware of the power to strike a prior narcotics conviction].) Footnote 13 is consistent with the well established California Supreme Court practice to provide an ordered process by which defendants may secure the benefit of its retroactive sentencing decisions.

Tenorio, which is cited twice in footnote 13 of Romero, was the first time the Supreme Court overturned on separation of powers grounds a statute requiring prosecutorial concurrence before a prior conviction finding could be stricken. The opinion was filed on September 1, 1970. (People v. Tenorio, (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.) In Tenorio, the Supreme Court disapproved its prior decision in People v. Sidener (1962) 58 Cal.2d 645, 648-651, 25 Cal.Rptr. 697, 375 P.2d 641 which held that there was no violation of the separation of powers doctrine when former Health and Safety Code section 11718 precluded a trial judge from striking a prior narcotics conviction pursuant to section 1385 without prosecutorial concurrence. In footnote 2 of its opinion, the Tenorio court set forth the process by which defendants sentenced prior to that decision could challenge their sentences as follows: "Inasmuch as today's decision relates only to sentencing and will not require any retrials, we have concluded that it should enjoy fully retroactive effect. (Cf. In re Dabney [ (1969) 71 Cal.2d 1, 9-10, 76 Cal.Rptr. 636, 452 P.2d 924].) Any prisoner suffering a sentence imposed after the effective date of Health and Safety Code section 11718 (Sept. 18, 1959) and augmented by virtue of a prior narcotics conviction may file a habeas corpus petition with the superior court inviting the exercise of discretion to dismiss the prior conviction. Petitions should be filed in the court with territorial jurisdiction in the first instance, and transferred by that court to the sentencing court in the event the court with territorial jurisdiction was not the sentencing court. (In re Caffey [ (1968) 68 Cal.2d 762, 765, fn. 3, 69 Cal.Rptr. 93, 441 P.2d 933].) Petitions should not be filed with this court or the Court of Appeal. Upon receipt of such a petition, the sentencing court should follow normal sentencing procedures and grant appropriate relief whenever deemed warranted in its discretion." (People v. Tenorio, supra, 3 Cal.3d at pp. 95-96, 89 Cal.Rptr. 249, 473 P.2d 993.) It bears considerable emphasis that footnote 13 of Romero twice cites to Tenorio.

In 1971, the Supreme Court detailed the procedures that were to be followed in reviewing challenges under footnote 2 of the Tenorio opinion to the sentences where the trial judge had operated under the misapprehension she or he could not strike a prior narcotics conviction because of the provisions of former Health and Safety Code section 11718 in the decision of In re Cortez, supra, 6 Cal.3d at pages 82-83 and 88-89, 98 Cal.Rptr. 307, 490 P.2d 819. In Cortez, the Supreme Court held; "We are now called upon to further detail these implementing procedures and specifically to determine whether a prisoner seeking relief under Tenorio is entitled to a hearing at which he is present and represented by counsel. We have concluded that a petitioning prisoner who has established that he was sentenced pursuant to a narcotics conviction sustained between September 18, 1959 and September 1, 1970, and that his sentence was increased due to a prior narcotics conviction, must be accorded a hearing before the sentencing court at which he is personally present and represented by counsel." (Id. at pp. 82-83, 98 Cal.Rptr. 307, 490 P.2d 819, ...