People v. Santana

• Decision Date: 09 June 1986
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Ernest SANTANA, Defendant and Respondent. Crim. B007634.

Page 51

227 Cal.Rptr. 51

182 Cal.App.3d 185

The PEOPLE, Plaintiff and Appellant, v. Ernest SANTANA, Defendant and Respondent.

Crim. B007634.

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

June 9, 1986.

Review Denied Sept. 25, 1986.

Ira Reiner, Dist. Atty., Donald J. Kaplan and Maurice H. Oppenheim, Deputy Dist. Attys., for plaintiff and appellant

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, William J. Klump and Albert J. Menaster, Deputy Public Defenders, for defendant and respondent.

EAGLESON, Associate Justice.

In this case, we hold that when the functional effect of a trial court's order is to strike a Penal Code section 667, subdivision (a) ¹ enhancement, even though the action is denominated a stay, the court must comply with section 1385. Moreover, a trial court cannot use a prior 667, subdivision (a) conviction as a factor in aggravation of a sentence.

FACTS

Defendant was charged with burglary of a residence in violation of section 459. An amendment to the information further alleged that he came within the provisions of section 667, subdivision (a) because he had been previously convicted "of a serious felony, to wit, BURGLARY (Residential), in violation of Section 459 of the Penal Code...."

After the court had read and considered a pre-plea probation report (Code Civ.Proc., § 131.3), defendant, through counsel, advised the court that he had decided to plead guilty, admit the prior, and also admit a pending probation violation. Defense counsel commented that "the court is indicating it intended to use the prior as an enhancement and give [defendant] six years in the state prison, stay the prior and run the violation of probation concurrent." ² , ³ The court replied, "That is correct."

The prosecutor then told the court, "The position of the prosecution is that the staying of time on the five years serious prior felony conviction, under Proposition 8, is not constitutional within the meaning of the amendment to the constitution."

After appropriate waivers, a plea was taken on July 18, 1984, at the conclusion of which the court stated: "In this matter the defendant is sentenced to the upper term of six years in state prison. He is given credit for 57 days time served plus 29 People v. Sage credit [Rf. People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874], for a total of 86. [p] Time on the prior is stayed, the five year enhancement, so the total sentence is six years. [p] On case No. A527211 he is found in violation of probation, probation is revoked, and the two year sentence of mid term to state prison is imposed, to run concurrently with the present six year term."

The People appeal from the minute order of July 18, 1984, pursuant to section 1238, subdivision (a), paragraphs (5) and (6). ⁴

DISCUSSION

The People contend that the trial court cannot use a prior serious felony conviction as an aggravating factor to impose an upper term and thus preclude imposing the additional five-year enhancement mandated by section 667. We agree.

I

In arriving at our conclusion, we first consider the action of the trial court when it purported to stay the "time on the prior."

The terms "stay" and "strike" are not legally synonymous. (People v. Calhoun (1983) 141 Cal.App.3d 117, 124, 190 Cal.Rptr. 115.) A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency. ⁵

In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to a dismissal. ⁶ In particular, the striking of an enhancement implies that the enhancement is legally insupportable, and must be dismissed in furtherance of justice.

The use of the word "strike" or "stay," however, is not always determinative of the In the instant case, the court stated "time on the prior is stayed, the five year enhancement, ..." The functional effect of this order was a striking, not a staying, because the order was unconditional. Under no circumstance, express or implied, could the five-year enhancement be resurrected and imposed at some future point in time. ⁷

trial court's intent. The focus should not be on the words used but on the functional effect of the trial court's order.

II

Even if determined to be a stay, the trial court had no jurisdiction to make such an order.

"The several sections of [the Penal] code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed." ( § 12.)

The scope of this duty is illustrated in People v. Cheffen (1969) 2 Cal.App.3d 638, 82 Cal.Rptr. 658. There, the jury returned a guilty verdict as to each of five felony counts. The trial judge pronounced judgment and sentence on only two of the five counts. Defendant was not informed as to the disposition of the remaining three counts or the punishment imposed thereon. On appeal, the court held: "Upon conviction, it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty, the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. [Citations.]" (Id. at p. 641, 82 Cal.Rptr. 658.)

In People v. Calhoun, supra, 141 Cal.App.3d 117, 190 Cal.Rptr. 115, the appellate court considered whether the trial court could stay the execution of the enhancement of a sentence under section 12022.5 for a firearm use. The court concluded: "There is nothing in the language of section 1385, which permits a 'stay' of all or part of a sentence." (Id. at p. 125, 190 Cal.Rptr. 115.)

We see no reason to distinguish the instant case because it involves 667, subdivision (a) enhancements. The trial court clearly had no jurisdiction to stay the additional five-year sentence.

III

The court, acting at the time without benefit of hindsight, had jurisdiction to strike the enhancement but failed to exercise this discretion properly.

"Section 667, subdivision (a), is not discretionary. It provides that '[a]ny person convicted of a serious felony ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction....' Unless the prior serious felony is stricken, the court is required to impose the five-year enhancement." (People v. Jackson (1986) 178 Cal.App.3d 694, 697, 224 Cal.Rptr. 37.)

In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, the Supreme Court held that neither article I, section 28, subdivision (f) of the state Constitution, enacted as part of an initiative measure (popularly called Proposition 8), nor section 667 eliminated a trial court's traditional section 1385 authority to strike a prior conviction for purposes of sentencing. ⁸, ⁹ "The power of dismissal under 1385 requires not only that the trial court's reasons be entered in the minutes but also that dismissal be in ' "furtherance of justice," ' which ' "requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.... [Citations.]" ' (People v. Orin (1975) 13 Cal.3d 937, 945 [120 Cal.Rptr. 65, 533 P.2d 193] ..., italics in original; see also People v. McAlonan (1972) 22 Cal.App.3d 982, 986-987 ....)" (People v. Jackson, supra, 178 Cal.App.3d 694, 698, 224 Cal.Rptr. 37.)

⁸, ⁹ However, if the trial court elects to strike the prior, or [182 Cal.App.3d 193] where the functional effect of the court order is a striking, it must comply with 1385.

" 'The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason, "so that all may know why this great power was exercised." ' (People v. Beasley (1970) 5 Cal.App.3d 617, 637 ...; italics in original; see also People v. Andrade (1978) 86 Cal.App.3d 963, 974 ... (verbal statement recorded in reporter's transcript not sufficient compliance).)" (People v. Rivadeneira, 176 Cal.App.3d 132, 137, 222 Cal.Rptr. 548.)

IV

The remaining question is whether the prior 667, subdivision (a) felony conviction may be used as a factor in aggravation so as to preclude its further use as an enhancement. If so, the effect of this procedure is to convert a five-year enhancement into an aggravation of sentence. In this case, defendant's sentence would be increased by two years. We hold that this action is an abuse of the trial court's discretion. The court must either impose the five-year enhancement or entirely strike the serious prior felony conviction. Here, the court did neither.

The practice of using a 667, subdivision (a) serious prior felony conviction as a factor in aggravation was addressed in our opinion in People v. Keys (1985) 175 Cal.App.3d 431, 220 Cal.Rptr. 760.

In Keys, ostensibly a plea bargain case, the trial court struck the prior in order "to use the prior conviction as a circumstance in aggravation and impose the upper term." (Id. at p. 434, 220 Cal.Rptr. 760.) We noted: "The court's sentence was obviously based on rule 441(b), California Rules of Court, which provides: 'A fact charged and found as an enhancement may be used to impose the upper term, whereupon the additional term of imprisonment prescribed for that fact as an enhancement shall be stricken. The use of the fact to impose the upper term is an adequate reason for striking the additional term of imprisonment.' " (Ibid.)

We held that section 667 limits the discretion which would otherwise exist under rule 441(b). The electorate, in enacting section 667 as part of Proposition 8 in June 1982, made clear its intent that in the case of a section 667 prior, "a trial court does not have discretion under rule 441 to avoid the five-year...