People v. Superior Court (Missamore)

• Decision Date: 28 September 1995
• Docket Number: No. A067465,A067465
• Citation: 38 Cal.App.4th 1358,45 Cal.Rptr.2d 392
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 38 Cal.App.4th 1358, 43 Cal.App.4th 115, 47 Cal.App.4th 1292 38 Cal.App.4th 1358, 43 Cal.App.4th 115, 47 Cal.App.4th 1292, 95 Cal. Daily Op. Serv. 7643, 95 Daily Journal D.A.R. 13,130 The PEOPLE, Petitioner, v. SUPERIOR COURT of Sonoma County, Respondent, Jeffrey Dean MISSAMORE, Real Party in Interest.

Page 392

45 Cal.Rptr.2d 392

Previously published at 38 Cal.App.4th 1358, 43 Cal.App.4th 115, 47 Cal.App.4th 1292

38 Cal.App.4th 1358, 43 Cal.App.4th 115, 47 Cal.App.4th 1292,

95 Cal. Daily Op. Serv. 7643,

95 Daily Journal D.A.R. 13,130

The PEOPLE, Petitioner, v. SUPERIOR COURT of Sonoma County, Respondent, Jeffrey Dean MISSAMORE, Real Party in Interest.

No. A067465.

Court of Appeal, First District, Division 2, California.

Sept. 28, 1995.

Review Granted Dec. 21, 1995.

Cause is Transferred to the Court of Appeal Sept. 23, 1998.

Daniel E. Lungren, California Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, David H. Rose, Deputy Attorney General, Gerald A. Engler, Deputy Attorney General, Office of the Attorney General, San Francisco, for the people.

Ron Boyer, Berkeley, by appointment of the Court of Appeal under the First District Appellate Project Independent Case System, for real party in interest Jeffrey Dean Missamore.

Office of the County Public Defender, Santa Rosa, for amicus curiae for real party in interest California Public Defenders.

HAERLE, Associate Justice.

I. INTRODUCTION

This case raises the question of whether, under the "Three Strikes" law enacted by the Legislature last year (Pen.Code, § 667, subds. (b)-(i)), ¹ a trial court may grant probation to a defendant who has already been convicted of a prior "violent or serious" felony. We hold that it may not and, therefore, grant the petition for a writ of mandate.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 1994, real party in interest, Jeffrey Dean Missamore (hereafter sometimes defendant), was charged by the Sonoma County District Attorney with knowingly bringing a controlled substance into a county jail (§ 4573) and the separate offense of possessing marijuana in a county jail. (§ 4573.6.) The information alleged that Missamore had suffered a prior serious felony conviction for burglary, which subjected him to twice the minimum base prison term ordinarily applicable (§ 667(e)(1)), and that he served a prior prison term for that burglary and another for receiving stolen property, each of which subjected him to an additional one-year prison term. (§ 667.5(b).)

The events that gave rise to this proceeding started on February 3, 1994, when Missamore was convicted of petty theft for stealing cigarettes and food from a supermarket in Santa Rosa. Because he had previously been convicted of a theft offense, he was exposed to the possibility of a state prison term. (§ 666.) A state prison sentence was imposed but suspended on the condition petitioner serve 120 days in county jail. The instant offense occurred while Missamore was in the county honor farm completing that jail term. During a random search of inmates, he was found in the possession of cigarette rolling papers and 8.2 grams of marijuana and thereafter charged as noted above.

Pursuant to a negotiated arrangement with the district attorney, Missamore entered a plea of no contest to possessing marijuana in the county jail and admitted the prior serious felony conviction in exchange for the district attorney's agreement to dismiss the charge of bringing a controlled substance into a county jail. The plea bargain did not include any agreement as to sentence.

The conviction at issue here (i.e., for possessing marijuana in a county jail) represented Missamore's fourth felony conviction. His other three included one for burglary and two for receiving stolen property. ² Additionally, he had a criminal history of minor offenses, the most recent being a 1993 conviction for disturbing the peace (§ 415).

From the beginning, i.e., the July 1994 hearing at which the defendant's no contest plea was accepted, and continuing to the sentencing hearing the following month, the record clearly reflects that the trial court felt that Missamore was entitled to and should receive probation. Indeed, at the August 1994 sentencing hearing, after hearing argument by both sides and before dealing at all with the applicability of section 667(b) through (i), the court first took up the issue of the defendant's suitability for probation under section 1203(e). It found this to be an "unusual case[ ] where the interests of justice would best be served if the person is granted probation." (§ 1203(e)(4).)

The court then proceeded to note the prohibition of probation found in section 667(c) ³ and found, with respect to that section, that the state prison sentence urged by the district attorney "would shock the conscience and affect the fundamental notions of human dignity as referred to in the cases that have been submitted to the Court, thereby violating the prohibition against cruel and unusual punishment prohibited by Article One, Section Six [sic ] of the California Constitution and the Eighth Amendment of the Federal Constitution." The court explained this conclusion as follows:

"For this small amount of marijuana, where there is remorse; where there is a desire by the defendant to be rehabilitated; where it is believed that the defendant has a sincere desire and can be rehabilitated; where the crime itself, with a small amount of marijuana, is not significant nor a danger to anyone; where the defendant does not have a history of any violent conduct whatsoever; where the crime for which he is charged is not a violent crime, it is not one that presents a danger of violence to society; where the incarceration [of] the defendant in the state prison system would result in taking a space for a person who truly needs maximum-security confinement to protect society, such as from violent crime; where the rehabilitative process of the defendant would be stopped and delayed during the period of time he is in state prison; the Court believes it can reach no other conclusion but that the following of this law, referred to as three strikes ..." would shock the judicial conscience and constitute cruel and unusual punishment.

Finally, the court concluded that, under section 1385, "the trial court has inherent power to strike priors on its own, even though over the objection of the prosecutor." The court believed it also retained "the discretionary power to dismiss a prior conviction in the furtherance of justice under Penal Code section 667," and that "[e]xercise of this right and power is not subject to prosecutorial control, and independently vested with the trial court by virtue of the separation of powers doctrine."

With these as its premises, the court placed Missamore on probation for three years conditioned on his service of one year in county jail; it also imposed other conventional conditions of probation. Finding that the case presented unusual circumstances within the meaning of section 1203(e)(4), the court struck Missamore's prior serious felony conviction under section 1385, after determining that it possessed the legal power to do so.

On October 7, 1994, the People petitioned this court for a writ of mandate from the order granting probation. (§ 1238(a)(10).) This panel, with one dissent, summarily denied the petition on December 15, 1994.

Petitioner sought review in the California Supreme Court on December 23, 1994. The petition was granted and, in an order dated March 2, 1995, the Supreme Court directed that we vacate our order denying mandate and issue an alternative writ, as we did on March 14, 1995.

III. DISCUSSION

A. The Statute at Issue Here

The purpose of the "Three Strikes" law, set forth in section 667(b), is "to ensure longer prison sentences and greater punishment" for persons convicted of any felony offense who have previously been convicted of one or more serious felonies within the meaning of section 1192.7(c) and/or violent felonies within the meaning of section 667.5(c). (§ 667(d)(1).) To achieve this goal, the new law provides that, if a defendant is convicted of a felony and it has been pled and proved that he or she has one prior serious or violent felony (the first strike), the minimum term shall be twice the term otherwise provided for the current felony conviction (the second strike). (§ 667(d)(1), (e)(1).) If the defendant has two or more prior serious and/or violent felony convictions, the minimum term imposed for the current felony (the third strike), is the indeterminate term of life with a minimum sentence of the greater of: (1) three times the term otherwise provided for the current felony or felonies, (2) 25 years, or (3) the term determined by the court pursuant to section 1170 plus enhancements. (§ 667(e)(2)(A).) The sentences prescribed under the new law are in addition to any other enhancements or punishment that may apply. (§ 667(e).)

Prosecuting attorneys are required to plead every prior felony conviction and are prohibited from using such convictions to negotiate pleas. (§ 667(f)(1), (g).) Significantly for present purposes, the sentencing court is prohibited from granting probation for the current offense or suspending sentence for a prior offense. (§ 667(c)(2).) The court must ordinarily commit the defendant to state prison and the imposition of consecutive sentences is also required. (§ 667(c)(4), (c)(6), (c)(7), (c)(8), (e)(2)(B).) The prosecuting attorney is, however, permitted to move to dismiss or strike a prior felony conviction allegation "in the furtherance of justice pursuant to Section 1385," or if there is insufficient evidence to prove the prior conviction. (§ 667(f)(2).)

On November 8, 1994, shortly after the "Three Strikes" law was enacted by the Legislature, the voters approved an initiative, Proposition 184, adding section 1170.12 to the Penal Code. It is virtually identical to the provisions of section 667(b) through (i), just briefly described. Because section 1170.12 became effective on November 9, 1994, after the sentencing here, it is nominally inapplicable to this case.

B. Issues Presented

The issues involved in this case are (a) whether section 667(c)(...