People v. Rodriguez

• Decision Date: 15 January 1998
• Docket Number: No. S055670,S055670
• Court: California Supreme Court
• Parties: , 949 P.2d 31, 98 Cal. Daily Op. Serv. 378, 98 Daily Journal D.A.R. 508 The PEOPLE, Plaintiff and Respondent, v. Antonio Ramirez RODRIGUEZ, Defendant and Appellant.

Page 334

70 Cal.Rptr.2d 334

17 Cal.4th 253, 949 P.2d 31, 98 Cal. Daily Op. Serv. 378,

98 Daily Journal D.A.R. 508

The PEOPLE, Plaintiff and Respondent, v. Antonio Ramirez RODRIGUEZ, Defendant and Appellant.

No. S055670.

Supreme Court of California.

Jan. 15, 1998.

Patricia L. Watkins, under appointment by the Supreme Court, Half Moon Bay, for Defendant and Appellant.

Michael P. Judge, Public Defender, Los Angeles, Albert J. Menaster, Alex Ricciardulli and Paula Montez, Deputy Public Defenders, Charels H. James, Public Defender, Contra Costa, and Ron Boyer, Deputy Public Defender, as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey, Sanjay T. Kumar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, Justice.

In this case we consider how People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, should apply to that narrow class of defendants whose sentencing courts erroneously believed, and indicated on the record, that they lacked discretion to strike prior felony conviction allegations under the "Three Strikes" law (Pen.Code, §§ 667, subds. (b)-(i), 1170.12) ¹ and whose appeals are not yet final. We recently observed that such cases must be remanded to give sentencing courts an opportunity to exercise their discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944, 67 Cal.Rptr.2d 1, 941 P.2d 1189.) The question presented here is whether, on remand, the court should exercise its discretion in the presence of defendant and his counsel.

We answer the question in the affirmative. We also reverse one of the trial court's findings of a prior felony conviction for insufficient evidence.

I. FACTS AND PROCEDURAL POSTURE

A jury convicted defendant of one count of possessing cocaine base for sale. (Health & Saf.Code, § 11351.5.) Thereafter, the court as trier of fact found defendant had previously been convicted of three serious felonies as defined in the Three Strikes law. (§§ 667, subd. (d)(1); 1192.7, subd. (c)(1).) The court found a fourth prior felony conviction allegation untrue. The court also found defendant had served two prior prison terms (§ 667.5, subd. (b)), but struck those findings for sentencing purposes. The court did not strike any of the three prior felony conviction findings. While repeatedly expressing his opinion that the required sentence was too severe, the judge nevertheless declared on the record his understanding that he was "compelled to follow the [Three Strikes] law" by imposing a sentence of 25 years to life.

We subsequently held, contrary to the trial judge's assumption, that courts in cases charged under the Three Strikes law do have the discretionary power to dismiss prior felony conviction allegations and findings in furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 507-530, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Applying Romero, the Court of Appeal determined defendant was entitled to relief because the trial judge believed he had no such power and did not say that he would, in any event, have declined to exercise it in defendant's favor. (See Romero, supra, 13 Cal.4th at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Instead of remanding for resentencing, however, the Court of Appeal purported to "affirm" the judgment, with the following directions: "[A]lthough we shall affirm the judgment, we shall remand the matter to the trial court so it may determine whether or not to exercise its limited discretion. (People v. Superior Court (Romero ), supra, 13 Cal.4th 497, [530-532, 53 Cal.Rptr.2d 789, 917 P.2d 628].) If it decides not to exercise its limited discretion, the defendant need not be present and the imposed sentence shall remain in effect. However, if the trial court believes it would not be an abuse of its limited discretion to dismiss one or more 'strikes'--and it wishes to do so--then the defendant must be present and a new sentence hearing conducted." (Fn. omitted.)

In a petition for rehearing, defendant argued the procedure on remand contemplated by the Court of Appeal violated his statutory and constitutional rights to be present with counsel at sentencing. The Court of Appeal denied the petition, with one justice voting to grant. We granted defendant's petition for review. ²

II. DISCUSSION

A. To What Relief is Defendant Entitled?

In holding that the case must be remanded to give the trial court an opportunity to exercise its discretion, the Court of Appeal was correct. Our decision in Romero, as we expressly held therein, is "fully retroactive." (13 Cal.4th at p. 530, fn. 13, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Accordingly, as we also held, "[a] defendant serving a sentence under the Three Strikes law ... 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...." (Ibid.) Because the record in this case shows the trial judge erroneously believed he had no such discretion, defendant has a remedy on appeal.

Our recent decision in People v. Fuhrman, supra, 16 Cal.4th 930, 67 Cal.Rptr.2d 1, 941 P.2d 1189, is not to the contrary. In Fuhrman we withheld relief on appeal in so-called "silent record" cases, i.e., cases in which the record does not show the trial court misunderstood the law. At the same time, however, we emphasized that relief continues to be available in cases such as the one before us now. We wrote: "Romero establishes that where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion as clarified in Romero." (People v. Fuhrman, supra, 16 Cal.4th at p. 944, 67 Cal.Rptr.2d 1, 941 P.2d 1189.) The People do not argue to the contrary. Accordingly, the only question before us concerns the procedure to be followed on remand.

Under the procedure contemplated by the Court of Appeal, defendant would have an opportunity to appear with counsel before the trial court only if the court decides in advance to rule in defendant's favor. (See ante, pp. 336-337 of 70 Cal.Rptr.2d, pp. 32-34 of 949 P.2d.) Defendant argues such a procedure would violate his statutory and constitutional rights to be present with counsel at sentencing and pronouncement of judgment, a critical stage of the criminal prosecution. (Cal. Const., art. I, § 13; Pen.Code, § 1193; In re Perez (1966) 65 Cal.2d 224, 229, 53 Cal.Rptr. 414, 418 P.2d 6 ; see also U.S. Const., Amends. VI, XIV; Mempa v. Rhay (1967) 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.) The People, in response, do "not dispute that a defendant has an absolute right to be present at a sentence modification hearing and imposition of sentence." The People do not, however, concede that the procedure contemplated by the Court of Appeal amounts to sentencing or pronouncement of judgment. According to the People, if the trial court on remand determines not to strike a prior felony conviction finding, no sentencing occurs, judgment is not pronounced, and defendant's right to be present is not implicated.

We may assume that a reviewing court has the power, when a trial court has made a mistake in sentencing, to remand with directions that do not inevitably require all of the procedural steps involved in arraignment for judgment and sentencing. Section 1260, which sets out the permissible dispositions of a cause on appeal, permits the reviewing court to "remand the cause to the trial court for such further proceedings as may be just under the circumstances." We have exercised this power, for example, by directing a trial court to determine an unresolved factual issue affecting eligibility for probation, when the court had erroneously assumed the defendant was not eligible. (People v. Southack (1952) 39 Cal.2d 578, 591, 248 P.2d 12.) Thus, it appears we may properly remand to permit the trial court to make the threshold determination of whether to exercise its discretion in defendant's favor without necessarily requiring resentencing unless the court does act favorably.

It does not follow, however, that defendant's presence at the time the court makes the threshold determination serves no useful purpose. Under the statute authorizing us to remand with directions, we must remand "for such further proceedings as may be just under the circumstances." (§ 1260, italics added.) This, then, is the dispositive inquiry: Is it "just under the circumstances" to require the presence of defendant and his counsel on remand, at the first occasion on which the trial judge will consider whether to exercise his sentencing discretion in defendant's favor?

The People, who would have us answer the question in the negative, contend that "the trial court can make an informed decision regarding its exercise of discretion without further argument by the parties. Indeed, from the record the court is able to glean the nature of the defendant's criminal history via the probation officer's report as well as the nature of the current offenses from the trial transcript." "[L]ittle would be served," the People submit, by allowing "the parties to make superfluous arguments prior to the trial court making an initial decision relating to its inclination to strik[e] the prior convictions." We disagree. The evidence and arguments that might be presented on remand cannot justly be considered "superfluous," because defendant and his counsel have never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion. As defendant reasonably observes, "[i]t would have been a waste of the court's time for [defendant] to have attempted to present evidence which might...