In re Large

prior convictions.” (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 , 529-530 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ] (Romero).) On this basis, petitioner claims his sentence violates the due process clauses of the United States and California Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) Finally to resolve the matter, which has now generated four decisions by the Court of Appeal and three postappeal hearings in the superior court, we granted the petition and issued an order to show cause returnable before ourselves. We conclude petitioner has not shown that he is entitled to relief and therefore discharge the order to show cause.

On April 4, 1995, the District Attorney of Riverside County charged petitioner by information with petty theft with a prior (§ 666), a felony, and falsely identifying himself to a police officer (§ 148.9, subd. (a)), a misdemeanor. Also alleged was that petitioner had suffered two prior felony convictions making him eligible for sentencing under the Three Strikes law, namely, first degree burglary (§ 459; see § 460, subd. (a)) and forcible lewd and lascivious conduct (§ 288, subd. (b)). Finally, the district attorney alleged petitioner was eligible for four one-year sentence enhancements (§ 667.5, subd. (b)) because he had served four prior prison terms for felonies and had not, following any of those terms, remained free of prison custody for the ensuing five years. The felony convictions underlying those prior prison terms were convictions for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)), as well as the burglary and lewd conduct convictions already mentioned.

On August 24, 1995, a jury found petitioner guilty of the charged offenses. The court subsequently found the sentencing allegations true.

Sentencing took place on October 13, 1995. Petitioner’s counsel asked the court to exercise its discretion to reduce the current conviction of petty theft to a misdemeanor (see § 17, subd. (b)) and to strike one or more of the prior felony conviction findings that brought petitioner within the Three Strikes law (see § 1385, subd. (a)). The evidence concerning petitioner’s criminal record that was before the court at the sentencing hearing, including the probation report and the records of prior convictions, showed the following:

On February 2, 1978, petitioner was convicted of possessing a hypodermic needle, a misdemeanor. (Bus. & Prof. Code, former § 4143, subd. (a), as amended by Stats. 1972, ch. 883, § 1, p. 1561.) He received probation for this offense.

On October 16, 1980, petitioner was convicted of forcible lewd and lascivious conduct with a 12-year-old girl. The record shows that defendant drove with the victim at night to a remote, isolated cotton gin (processing plant) where he worked and to which he had the key, used force against her to accomplish intercourse and oral copulation, and threatened to harm her if she did not comply. He received a five-year prison term for this offense.

On June 8, 1984, petitioner was convicted of first degree burglary and assault with a deadly weapon other than a firearm. The evidence shows that petitioner and an accomplice took a lawnmower from the open garage of an occupied residence and then fled at high speed in a car; when the owners gave chase in another vehicle, eventually cornering petitioner in a dead-end street, petitioner made a U-turn and rammed his pursuers. Petitioner received a seven-year sentence for these offenses.

On September 22, 1989, petitioner was convicted of petty theft with a prior, a felony. He received a 28-month prison term for this offense.

On April 29, 1991, petitioner was convicted of driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)) and driving with a revoked or suspended license (id., § 14601.1), both misdemeanors. For these offenses petitioner received a fine and was required to participate in a driver improvement program.

On February 24, 1993, petitioner was convicted of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), a felony. He received a 16-month prison term for this offense.

On October 13, 1995, at the sentencing hearing in the instant case, petitioner stood newly convicted of petty theft with a prior (§ 666) and falsely identifying himself to a police officer (§ 148.9, subd. (a)). The evidence showed, briefly, that petitioner had entered a JCPenney department store, taken an $18 fanny pack and concealed it underneath his shirt, and left the building without paying. Store security personnel, who had videotaped petitioner’s conduct on a surveillance camera, immediately detained him. When the police arrived, petitioner, who was on parole, falsely identified himself as his brother.

Other information before the court showed that petitioner, who had been paroled from state prison on November 16, 1993, had in the meantime suffered two parole revocations. His parole was revoked on January 13, 1994, for using methamphetamine, possessing Valium, failing to register as a sex

On March 25, 1998, without issuing an order to show cause, giving notice to the parties, or conducting a hearing, the original trial judge granted the petition for writ of habeas corpus and dismissed the allegation that petitioner had previously been convicted of forcible lewd and lascivious conduct. The People immediately sought review of the superior court’s decision by filing a petition for writ of mandate in the Court of Appeal. On October 26, 1998, holding that the superior court’s ex parte ruling had deprived the People of their state constitutional right to due process (Cal. Const., art. I, § 29), the Court of Appeal directed the issuance of a peremptory writ in the first instance (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 , 178 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ]), ordering the superior court to vacate its order granting the petition and “to set a hearing with notice to the People.” The peremptory writ of mandate issued on January 5, 1999.

On remand, the superior court did as the Court of Appeal had directed. On April 2, 1999, after receiving briefs from the parties, the original trial judge conducted a hearing on the petition. The People were represented by the deputy district attorney who had tried the case, and petitioner was present and represented both by his trial counsel and by the attorney who had filed the petition for habeas corpus. The court and counsel agreed that the court’s discretionary decision whether to strike a prior conviction finding was governed by our then recent opinion in People v. Williams (1998) 17 Cal.4th 148 [ 69 Cal.Rptr.2d 917 , 948 P.2d 429 ] (Williams), in which we articulated standards to govern the exercise of such discretion. The evidence before the court was the same evidence the same judge had considered at the original sentencing hearing. (See ante, at p. 541 et seq.) Petitioner’s counsel argued his client fell outside the spirit of the Three Strikes law (see Williams, at p. 161) because, “[w]ith the exception of [his] 1980 conviction for committing a lewd act by force, his record is largely comprised of small theft and drug matters with no indication of the violence and harm which the public rightly fears. Petitioner is a petty criminal, a person no doubt meriting punishment in the present case but not the 25-years-to-life term called for under the Three Strikes Law.” The district attorney, in contrast, disputed counsel’s characterization of petitioner as nonviolent, pointing to the facts of his 1980 conviction for forcible lewd and lascivious conduct (see ante, at p. 542) and his 1984 conviction for assault with a deadly weapon (ibid.). The district attorney also emphasized petitioner’s strong recidivist history, observing that he had reoffended soon after each of his four prior prison terms. Finally, the district attorney noted defendant’s failure to follow parole rules, as evidenced by his failure to report, his failure to register as a sex offender, and his falsely identifying himself to police. At the conclusion of the hearing, the judge expressed his understanding that, while he would be

this point, the judge said: “My granting of the first petition for writ of habeas corpus was denied—was reversed, frankly, for failure to give notice. Yet, the Court in its opinion states that I had previously ruled upon it.” Concerning the November 19, 1999, order denying the petition, the judge apologized for not giving notice and said, “I frankly don’t have any recollection at all as to why that November 19 order came down.”

On April 27, 2004, petitioner sought review of the superior court’s ordef reinstating his original sentence by filing a petition for writ of habeas corpus in the Court of Appeal. Petitioner alleged he had “been denied his due process right to the exercise of the trial court’s discretion to dismiss one or more of [his] strike prior convictions.” He expressly did not contend “that the trial court’s second, binding ruling is necessarily unsustainable as an exercise of discretion, although [he] disagrees with it...Instead, observing that the discretionary decision to strike a prior is governed by the principles set out in Romero, supra, 13 Cal.4th 497 , and Williams, supra, 17 Cal.4th 148 , petitioner argued that “the inconsistency of the court’s rulings calls into question whether these principles were observed ...” As relief, petitioner asked the court to remand the case “for proper exercise of the trial court’s discretion . . . .” Petitioner also appealed the superior court’s ruling, with his counsel filing a so-called Wende brief (see People v. Wende (1979) 25 Cal.3d 436 [ 158 Cal.Rptr. 839 , 600 P.2d 1071 ]; Anders v. California (1967) 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ]) identifying no arguable issués for appeal and asking the Court of Appeal to review the record independently.

Addressing both the petition for habeas corpus and the appeal in a single opinion, the Court of Appeal denied the petition and affirmed the superior court’s order reinstating the original sentence. Concerning the petition, the Court of Appeal explained that, “since the trial court never explained its reasons for denying [the] petition for writ of habeas corpus, which this court declared in People v. Large [Apr. 21, 2003, E031159] to be a valid order, we have no basis upon which to conclude that that ruling was not reached in the proper manner. Certainly it, and the trial court’s order at issue here, although wrongly reasoned, is consistent with the conclusion this court reached in 1996 that ‘it would have been an abuse of discretion for the trial court to dismiss [either] of [petitioner’s] strike priors.’ ” Concerning the appeal, the court found no arguable issues.

Petitioner sought review of the Court of Appeal’s decision by filing, on September 8, 2004, the instant petition for writ of habeas corpus in this court, reiterating the claims made below. After determining that petitioner’s claim was not procedurally barred, we granted the writ and issued an order to show cause returnable before ourselves on the merits of the claim.

decisions to dismiss a strike and one decision not to dismiss a strike. But, when these are the results of decisions by a single judge, the inference is that there has been a breakdown in the judge’s decisionmaking process, and, since it cannot be determined which decision or decisions were affected by the breakdown, petitioner should be granted a new hearing in which proper decisionmaking will be employed.”

Petitioner describes his claim as arising under the due process clauses of the United States and California Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) In support of his claim, petitioner cites decisions holding that a convicted person is entitled to be sentenced by a judge who is aware of the scope of his or her discretion and has accurate information about the defendant’s criminal record. (United States v. Tucker (1972) 404 U.S. 443 , 446-447 [ 30 L.Ed.2d 592 , 92 S.Ct. 589 ]; Townsend v. Burke (1948) 334 U.S. 736 , 740-741 [ 92 L.Ed. 1690 , 68 S.Ct. 1252 ]; People v. Belmontes (1983) 34 Cal.3d 335 , 348, fn. 8 [ 193 Cal.Rptr. 882 , 667 P.2d 686 ].) Whatever the source of the right, we have repeatedly confirmed that a person subject to the Three Strikes law is entitled to a genuine exercise of sentencing discretion by the trial court (People v. Rodriguez (1998) 17 Cal.4th 253 , 257 [ 70 Cal.Rptr.2d 334 , 949 P.2d 31 ]; People v. Fuhrman (1997) 16 Cal.4th 930 , 942 [ 67 Cal.Rptr.2d 1 , 941 P.2d 1189 ]; Romero, supra, 13 Cal.4th 497 , 530, fn. 13) and that the court’s decision either way is subject to review for abuse of discretion (People v. Carmony, supra, 33 Cal.4th 367 , 375; Williams, supra, 17 Cal.4th 148 , 162). We may thus safely take for granted that a discretionary sentencing decision rendered by a judge who did not understand what he was doing would not be sustainable as a proper exercise of discretion.

We see in the record, however, no justification for challenging on this basis the operative order of November 19, 1999, denying the petition for habeas corpus.

Petitioner does not argue that the trial judge’s failure to give reasons for declining to strike one of his prior convictions invalidates the November 19, 1999, order. Nor could he so argue. While a court must explain its reasons for striking a prior (§ 1385, subd. (a); see Romero, supra, 13 Cal.4th 497 , 531), no similar requirement applies when a court declines to strike a prior (People v. Carmony, supra, 33 Cal.4th 367 , 376). “The absence of such a requirement merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.” (Ibid.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Id., at

doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case”].) The very purpose of giving the parties notice and the opportunity to be heard is to give them a chance to present information that may affect the decision. That the superior court would reach a different decision in 1999 after hearing from the parties in person and reviewing petitioner’s criminal record in detail is not surprising. We thus do not find that the ex parte order of March 25, 1998, logically casts doubt on the regularity or correctness of the subsequent order of November 19, 1999, that followed a hearing of unquestioned procedural validity.

Having eliminated these possible challenges to the operative 1999 order, petitioner’s claim must succeed or fail on the proposition that the substance of the void 2001 order casts doubt on the regularity of the 1999 order. Petitioner’s argument seems to be that the same judge who decided to strike a prior in 2001, for the reasons he gave in the accompanying statement of decision, could not properly have reached the opposite decision in 1999. We do not believe the 2001 statement of decision has this much persuasive force.

The judge’s 1999 decision refusing to strike a prior constituted a reasonable exercise of discretion under the standards we set out in Williams, supra, 17 Cal.4th 148 , 159-161. There, we held that a court in exercising its discretion under the Three Strikes law “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (17 Cal.4th at p. 161.) Petitioner’s record includes two offenses that the law defines both as serious and violent, one involving forcible lewd conduct with a 12-year-old girl (§§ 667.5, subd. (c)(6), 1192.7, subd. (c)(6)) and the other a first degree burglary from an occupied residence (§§ 667.5, subd. (c)(21), 1170.12, subd. (c)(18)). Petitioner’s record also includes an assault with a deadly weapon, an offense that, while not formally defined either as serious or violent (cf. §§ 667.5, subd. (c), 1192.7, subd. (c)), in fact entailed a vehicular assault upon the victims of a burglary who were attempting to recover their stolen property. While petitioner’s more recent offenses were far less serious, each represented a return to crime after a recent release from prison. Petitioner’s most recent history, which includes committing a crime while on parole, falsely identifying himself to police, failing to register as a sex offender, and failing to report to his parole agent, suggests either an inability or unwillingness to follow the law and does not reflect well on his prospects. These facts adequately justified the judge’s 1999 decision not to strike a prior.

To be sure, the judge in 2001 took a very different view of petitioner. In the statement of decision explaining his purported decision to strike a prior, the judge wrote, “[t]he court has always believed that [petitioner] is not a violent person or someone who is a danger to someone’s physical safety.” In this connection, the judge discounted petitioner’s 1984 convictions for burglary and assault with a deadly weapon, stating that the burglary was “not in the residential part of the home” and that petitioner “insists the car he was driving merely crashed as a result of negligence.” The judge also discounted petitioner’s parole and sex offender registration violations, observing that “six out of eight times” petitioner had complied with those laws. Concerning petitioner’s background, character and prospects, the judge stated that “[t]he root cause of all of [petitioner’s] problems is drug related” and that, “[o]ver time, [petitioner’s] crimes have diminished, not increased, in severity.” The judge also recalled the testimony of character witnesses at the 1995 preliminary hearing, who had described petitioner as not violent and as wanting to enter a drug rehabilitation program. Finally, the judge mentioned petitioner’s training and job prospects as a roofer, and his connection with relatives, specifically an ailing brother who needed assistance and “grandchildren with whom [petitioner] wishes to establish a relationship . . . .” Viewing petitioner in this way, the judge concluded that petitioner’s “actions have appeared to change over time” and that the “prospects are good that he will not reoffend.” Thus “[w]eighing the factors of aggravation, mitigation, and [petitioner’s] background and character,” the court determined that petitioner fell “outside the Three Strikes scheme.”

The question before us is not whether the judge’s purported decision in 2001 to strike a prior would have constituted an abuse of discretion. (See generally People v. Carmony, supra, 33 Cal.4th 367 , 378.) Instead, the question is whether the void 2001 decision casts doubt on the judge’s operative 1999 decision not to strike a prior. We do not believe it does. The concept of discretion implies that, at least in some cases, a decision may properly go either way. (E.g., Ross v. Ross (1941) 48 Cal.App.2d 72 , 76 [ 119 P.2d 444 ] [“there are cases in which an order either way will be sustained on the ground that no abuse of discretion appears”].) Here, a judge called out of retirement to rehear a discretionary sentencing decision six years after trial and two years after the last, forgotten ruling, reached a different decision than before. This, standing by itself without any indication the judge in making the operative ruling misunderstood the scope of his discretion or the relevant facts, does not demonstrate the ruling was invalid. We therefore conclude petitioner has not carried his burden of proving facts establishing his claim that he was denied his “right to the exercise of the trial court’s discretion to dismiss one or more of [his] strike prior convictions.”

The order to show cause is discharged.

George, C. J., Kennard, J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred.