People v. Trausch, B088543

• Citation: 36 Cal.App.4th 1239,42 Cal.Rptr.2d 836
• Decision Date: 19 July 1995
• Docket Number: No. B088543,B088543
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5664, 95 Daily Journal D.A.R. 9590 The PEOPLE, Plaintiff and Appellant, v. Michael Joseph TRAUSCH, Defendant and Respondent.

Page 836

42 Cal.Rptr.2d 836

36 Cal.App.4th 1239, 95 Cal. Daily Op. Serv. 5664,

95 Daily Journal D.A.R. 9590

The PEOPLE, Plaintiff and Appellant, v. Michael Joseph TRAUSCH, Defendant and Respondent.

No. B088543.

Court of Appeal, Second District, Division 4, California.

July 19, 1995.

Review Denied Oct. 26, 1995.

Gil Garcetti, Dist. Atty., Los Angeles, George M. Palmer, Acting Head Deputy Dist. Atty., Brent Riggs and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Judge, Public Defender, Los Angeles, Albert J. Menaster, Alex Ricciardulli, Paul Enright and Tracy A. Mooney, Deputy Public Defenders, for defendant and respondent.

HASTINGS, Associate Justice.

The People appeal the decision of the trial court to sentence Michael Joseph Trausch to county jail after he plead guilty to second degree burglary (Pen.Code, § 459), ¹ "a wobbler," and admitted prior convictions which qualify as "strikes" under the "three strikes" law, section 667, subdivisions (b) to (i). ² The People contend that because the three strikes law applied to the situation the court was without authority to reduce the burglary conviction to a misdemeanor and avoid the three strikes sentencing scheme. We disagree and affirm.

FACTUAL AND PROCEDURAL SUMMARY

The record reflects that on June 7, 1994, around 7:30 a.m., Trausch, apparently a transient, broke a window of the closed Patticakes Bakery in Altadena and took a chocolate cake topped with fresh strawberries. Shortly afterward he was apprehended. When he committed this act, he was on probation in case No. GA001931 for conviction of burglary in 1990. In that case, he had been sentenced to six years in state prison, but the court stayed imposition of sentence and placed him on probation.

In the instant case, Trausch was charged with felony second degree commercial burglary and was alleged to have suffered four When the matter was called for possible disposition, the court announced that if Trausch were to plead guilty in the current case and admit the priors, the court would utilize its inherent powers pursuant to People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, rather than under section 17, subdivision (b)(1) (hereafter section 17) and commit Trausch "to county jail for one year, and, therefore, by my act reduce this [current offense] to a misdemeanor." ⁴ The court added that it would also find him in violation of probation in case No. GA001931 and order execution of the six-year sentence. Trausch agreed, entered a plea of guilty, and admitted the truth of all allegations of prior convictions.

prior convictions within the meaning of the three strikes law (§ 667, subd. (b) through (i), see fn. 2, ante ) and three prior felony convictions for which he served separate prison terms (§ 667.5, subd. (b)). ³

At sentencing, the court reviewed the facts of the instant offense and Trausch's history and stated: "I cannot sentence [Trausch] to state prison for this long period of time over chocolate cake." The court then imposed sentence, stating: "In this case, because the defendant had taken the chocolate cake to provide himself with the necessity of life, and because he acknowledged wrongdoing at a very early stage in the criminal proceedings, the court will commit [Trausch] to the county jail for one year." The court then concluded that the three strikes scheme was not triggered: "Because the court has sentenced the defendant to a straight up--to county jail for one year, therefore, [it has] reduced this case to a misdemeanor, and, therefore, the four special allegations will not apply." The sentence was imposed over objection of the People. ⁵ The court then found that Trausch had violated probation and ordered execution of the six year sentence previously stayed in action GA001931.

DISCUSSION

1. The Court's Authority to Select a Misdemeanor Sentence over a Felony Sentence

There is no doubt the trial court deliberately chose to select a misdemeanor sentence in order to avoid imposition of the three strikes sentencing scheme. The court purported to act in reliance on People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993. We believe that the trial court's reliance on Tenorio was misplaced.

In Tenorio, the Supreme Court was faced with whether a trial court could strike an alleged prior conviction in the interest of justice, despite former Health and Safety Code section 11718. That section provided that no prior found to be true " 'may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.' (Italics added.)" (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.) The court found this statute "violative of the California constitutional separation of powers, as that concept demands that the branches of government be coequal and that a prosecutor not be vested with power to foreclose the exercise of a judicial power recognized in section 11718 itself." (Id. at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993, fn. omitted.)

By citing Tenorio, it appears the trial court was relying on the separation of powers doctrine to reduce the sentence to a misdemeanor. However, Tenorio dealt with the court's inherent power to strike a prior allegation, not the situation presented here. In the instant case, the court did not attempt to strike any of the alleged prior convictions. Rather, it reduced the current conviction to a misdemeanor, a power recognized in section 17. ⁶

Section 17 provides in pertinent part: "(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. [p] (b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [p] (1) After a judgment imposing a punishment other than imprisonment in the state prison." (Italics added.)

Trausch was charged with commercial burglary pursuant to section 459. Burglary is either second degree burglary or first degree burglary. "(a) Every burglary of an inhabited dwelling house, vessel, ... floating home, ... trailer coach, ... or the inhabited portion of any other building, is burglary of the first degree. [p] (b) All other kinds of burglary are of the second degree." (Section 460.) Burglary of a commercial building is second degree burglary. (People v. Lewis (1969) 274 Cal.App.2d 912, 921-922, 79 Cal.Rptr. 650; People v. Warwick (1933) 135 Cal.App. 476, 27 P.2d 396.) "Burglary is punishable as follows: [p] ... [p] 2. Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison." (Section 461.) Therefore, second degree burglary is a "wobbler" subject to section 17. ⁷

A correct ruling will not be reversed even if the court's reasoning is erroneous. (People v. Richmond (1991) 2 Cal.App.4th 610, 616, 3 Cal.Rptr.2d 252.) It is clear that the trial court intended to reduce the charge to a misdemeanor but stated an incorrect ground in support of its decision. Therefore, if section 17 is still viable in a situation where the three strikes law may be applied, the ruling must stand. Our review turns to the three strikes law to determine if there is any inconsistency between it and the application of section 17.

2. Section 17 and the three strikes law

The People do not contest the continued viability of section 17 but, instead, urge that the three strikes law supersedes application of the section 17. In this regard, the People cite and quote from section 667, subdivision (c) as follows: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: ... [p] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense. [p] ... [p] (4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center...." (Italics in appellant's brief.) The People argue that these italicized portions of the statute evidence a clear intent by the Legislature that section 17 should not apply when prior qualifying strikes have been pleaded and proved. We disagree.

The People place the emphasis on the wrong language of the passage. Instead, the emphasis should be as follows: "Notwithstanding any other law, if a defendant has been convicted of a felony, and it has been pled and proved that the defendant has one or more prior felony convictions ... the court shall adhere to each of the following ..." This language makes it clear that the Legislature intended that a person who has been convicted of a new "felony" and also has qualifying "strikes" be sentenced to state prison pursuant to the provisions of the three strikes law. In other words, the "current conviction" must be a felony to trigger application of the three strikes law. Our review turns to whether the nature of the new conviction for purposes of three strikes is determined at the time of the guilty plea or upon sentencing. The parties cite differing lines of cases on this issue.

The People cite People v. Balderas (1985) 41 Cal.3d 144, 203, 222 Cal.Rptr. 184, 711 P.2d 480, People v. Satchell (1971) 6 Cal.3d 28, 35, footnote 13, 98 Cal.Rptr. 33, 489 P.2d 1361, People v. Banks (1959) 53 Cal.2d 370, 381, 1 Cal.Rptr. 669, 348 P.2d 102, and People v. Morse (1992) 2 Cal.App.4th 620, 647, 3 Cal.Rptr.2d 343, for the proposition that a "wobbler" charged as a felony is deemed a felony for all purposes until the time of judgment. They also cite ...