People v. Superior Court (Pipkin)

• Decision Date: 15 September 1995
• Docket Number: Nos. B091707,B092243,s. B091707
• Citation: 38 Cal.App.4th 1773,46 Cal.Rptr.2d 474
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 38 Cal.App.4th 1773, 43 Cal.App.4th 693, 47 Cal.App.4th 1833 38 Cal.App.4th 1773, 43 Cal.App.4th 693, 47 Cal.App.4th 1833, 95 Cal. Daily Op. Serv. 8093, 95 Daily Journal D.A.R. 13,881 The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Randall Eugene PIPKIN, Real Party in Interest. The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Frank RODRIGUEZ et al., Real Parties in Interest.

Page 474

46 Cal.Rptr.2d 474

Previously published at 38 Cal.App.4th 1773, 43 Cal.App.4th 693, 47 Cal.App.4th 1833

38 Cal.App.4th 1773, 43 Cal.App.4th 693, 47 Cal.App.4th 1833,

95 Cal. Daily Op. Serv. 8093,

95 Daily Journal D.A.R. 13,881

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Randall Eugene PIPKIN, Real Party in Interest.

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Frank RODRIGUEZ et al., Real Parties in Interest.

Nos. B091707, B092243.

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

Sept. 15, 1995.

As Modified Oct. 13, 1995.

Review Granted Nov. 22, 1995.

Review Transferred to the Court of Appeal Oct. 1, 1997.

Brentford J. Ferreira, Deputy District Attorney, for Petitioner.

Michael P. Judge, Los Angeles Public Defender, Albert J. Menaster, Tracy Mooney, Alex Ricciardulli, Deputy Public Defenders for real Parties in Interest.

No appearance for Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

The People of the State of California have filed petitions for writs of mandate seeking to set aside orders striking prior serious conviction findings in two different cases of defendants, Frank Rodriguez and Randall Eugene Pipkin. Because the prior conviction allegations had been "pled and proved" (PEN.CODE, § 667¹, subd. (c)), the respondent courts did not have the authority, given the holding of People v. Tanner (1979) 24 Cal.3d 514, 518-522, 156 Cal.Rptr. 450, 596 P.2d 328, to strike the prior serious felony convictions for purposes of granting probation to defendants. We have consolidated these cases. We issue our writs of mandate as to both defendants directing the orders striking the prior felony convictions that had been "pled and proved" (§ 667, subd. (c)) be set aside and permitting them to withdraw their no contest pleas.

II. PROCEDURAL BACKGROUND

A. Mr. Rodriguez's plea and grant of probation

Mr. Rodriguez was charged in count 1 of the amended information with possession of cocaine in violation of Health and Safety Code section 11350. In count 2, he was charged with being under the influence of cocaine, a misdemeanor, in violation of Health and Safety Code section 11550. It was further alleged as to the felony charge that he had previously been convicted of robbery in violation of Penal Code section 211. According to the probation report, Mr. Rodriguez was riding in a car with his wife, Maria Rodriguez. Mr. Rodriguez was a parolee and his wife was driving the automobile. When it was stopped by the police, Mr. Rodriguez was asked his name. Mr. Rodriguez lied and said his name was Frank Mendoza. ² Also, defendant lied and said his wife was his girlfriend. Mr. Rodriguez was under the influence of cocaine which would constitute a violation of his parole. He reached for his wife's purse. When asked why he was reaching for the purse, Mr. Rodriguez told the officer he "did not want to get his girlfriend" into trouble. Mr. Rodriguez admitted he put cocaine in her purse. Inside the purse, the officer found "cocaine residue (.08 gram) rolled up in a $20 bill."

Mr. Rodriguez used four aliases. He was placed in camp as a juvenile for "joyriding." On April 21, 1987, as an adult, Mr. Rodriguez was placed on 24 months misdemeanor probation for a violation of Vehicle Code section 10851. On July 25, 1988, he was convicted of providing false identification to a police officer (§ 148.9) and was placed on probation. On January 6, 1988, Mr. Rodriguez was convicted of his first felony, a violation of Vehicle Code section 10851. He was placed on three years felony probation. While on felony probation, he was convicted of a robbery arising out of a carjacking. He was sentenced to prison for the robbery. As a result of the robbery conviction, his probation resulting from his prior conviction on the unlawful driving of an automobile (Veh.Code, § 10851) was revoked and he was sentenced to prison. On August 19, 1990, Mr. Rodriguez was paroled. While on parole, he was arrested for robbery, being an accessory (§ 32), and once again providing false identification to a police officer. All charges were dismissed although his parole was revoked and he was returned to prison. On September 19, 1992, Mr. Rodriguez was paroled a second time. On July 26, 1994, Mr. Rodriguez was arrested in connection with the present case. He once again was found to be in violation of parole and received an eight-month term in custody.

Mr. Rodriguez worked two to three days per week for his father doing "gardening work" and was paid "under the table," viz. in violation of state and federal tax laws. Mr. Rodriguez said he worked for a pool contractor. However, the telephone number for the pool contractor was disconnected and Mr. Rodriguez's employment in this regard could not be verified. His employment stability was described as uncertain by the probation officer. Prior to his arrest and after he was paroled the second time on September 19, 1992, his parole officer indicated, "But 'by all appearances it seems like [Mr. Rodriguez] was making an earnest attempt to be a responsible citizen.' "

Prior to trial, the respondent court indicated it would strike the prior felony conviction if defendant would plead guilty. The respondent court stated: "I've indicated ... that if you plead guilty and admit the priors that I will strike the serious felony prior. [p] I will do so for a number of reasons: first of all, this does appear to be your first drug conviction; secondly, it appears that you've been productive. You're working long hours every week; you just finished your parole. Your parole officer apparently thought you were doing well; you've been testing clean for the last nine months of your parole; also, that the serious felony conviction is close to four years old. Apparently you got out of prison about two and a half years ago; and that the quantity of drugs here was small; and lastly, that you quickly admitted that the drugs were yours and did not allow another person to become--to get into trouble for those drugs. For those reasons I will strike the prior." ³ The prosecutor immediately objected to the trial court's proposed disposition and cited the Court of Appeal decision of People v. Superior Court (Romero) (1995) 31 Cal.App.4th 653, 37 Cal.Rptr.2d 364, review granted April 13, 1995 (S045097). After further discussion the deputy district attorney argued: "I would remind the court this gentleman does have a fairly lengthy record starting in 1987. He has a lot of theft offenses. He's been to prison on two occasions, once in 1987, and once in 1989 for robbery. He has recently been paroled and completed his parole, but has continued to engage in criminal conduct. I think this is the type of person the three-strikes law was made to affect, a habitual criminal, a repeat offender who has now reached the level of a second strike. [p] The People and the state have only sought to double the punishment against him. This is not a 25-to-life as is a third strike. It's only a second strike. [p] The People had offered him the minimum required under the second strike, which is--it's a 32-months second strike sentence. We do object strenuously to the court striking a strike, and I wanted to place it on the record." The respondent court then indicated: "Your arguments are noted. However, as to Romero, I think--I simply think that case is poorly rendered, and I do think I have authority under Proposition 184 to strike this prior; so I will do so, as I've indicated." Mr. Rodriguez then was advised of his constitutional rights and was advised he would be placed on probation. Mr. Rodriguez entered a no contest plea and admitted that he previously had been convicted of the serious felony as well as had served a prior prison term. After securing the approval and concurrence of defense counsel, the respondent court stated: "The court finds the defendant has knowingly and intelligently waived his rights, has freely and voluntarily changed his plea to guilty to counts 1 and 2, and has admitted the prior as alleged. [p] Accordingly, the court accepts the defendant's plea and judges him guilty and finds the prior to be true." After the plea and the admissions were entered, the respondent court then struck the prior serious felony conviction and placed Mr. Rodriguez on probation.

B. Mr. Pipkin's plea and grant of probation

Mr. Pipkin was charged in count 1 of the information with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). In count 2, he was charged with corporal injury on a spouse in violation of section 273.5, subdivision (a). Also, it was alleged that Mr. Pipkin had previously been convicted of grand theft from the person in violation of section 487, subdivision (c) and robbery in violation of section 211. According to the probation report, Mr. Pipkin struck his "live-in girlfriend" in the face. Mr. Pipkin was arrested while walking away from his residence. According to the preliminary hearing transcript, in his shirt pocket was a loaded .25 caliber pistol with the safety off and a round in the chamber. The weapon was "ready to fire." On March 3, 1982, defendant was sentenced to prison for robbery. On March 5, 1982, defendant was sentenced to prison for grand theft from the person. (§ 487.) Later, Mr. Pipkin was paroled but was returned to prison on a parole violation on December 14, 1984. On March 23, 1985, he was once again paroled. On March 18, 1981, Mr. Pipkin was convicted of misdemeanor battery (§ 242) and placed on two years probation. The probation officer in the present case recommended probation be granted despite Mr. Pipkin's "tendency towards violence" The probation officer apparently did not know that because Mr. Pipkin had a prior serious felony conviction, he was statutorily ineligible for probation.

After he was tried, the jury was unable to reach a verdict,...