People v. McGlothin

The Romero court noted that discretion is abused if a court dismisses an allegation for judicial convenience, to relieve court congestion, or simply because a defendant pleaded guilty. The court went on to point out: “Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation].” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.)

Earlier this year the Supreme Court returned to the issue of a section 1385 dismissal in the Three Strikes context. In People v. Williams (1998) 17 Cal.4th 148 [ 69 Cal.Rptr.2d 917 , 948 P.2d 429 ] (Williams), the court pointed out that, while the appellate review standard is a deferential one, “it is not empty.” (Id. at p. 162.) Justice Mosk summarized the court’s view: “We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present

Justice Mosk acknowledged that, as an academic matter, one seeking to determine whether an act is “in the furtherance of justice” may look to general principles, outside the framework of the sentencing scheme, or be guided, instead, by the particulars of the scheme itself, informed as well by “generally applicable sentencing principles relating to matters such as the defendant’s background, character, and prospects,” including the factors found in California Rules of Court, rule 410 et seq. (Williams, supra, 17 Cal.4th at p. 160.) The Supreme Court has adopted the latter approach. “The scheme itself constitutes the Tetter’ of the law.-More than perhaps any other source, it may also suggest its ‘spirit.’ ” (Ibid.) Referring back to Romero, the court reiterated its caution against relying on factors “extrinsic to the [sentencing] scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant.” (Id. at p. 161.)

The Supreme Court has thus made clear that a decision to strike a prior is to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant’s own history and personal circumstances. This approach allows the court to perform its obligation to tailor a given sentence to suit the individual defendant. But the court must also be mindful of the sentencing scheme within which it exercises its authority. In deciding to strike a prior, a sentencing court is concluding that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.

The Williams court concluded the trial judge abused his discretion in striking a prior. We do likewise. In reaching this conclusion we apply long-standing section 1385 principles, which predate the enactment of the Three Strikes law. In People v. Jackson (1986) 178 Cal.App.3d 694 [ 224 Cal.Rptr. 37 ], Justice Eagleson pointed out: “The striking of a prior serious felony conviction is not a routine matter. It is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial.” (Id. at pp. 697-698.) In reviewing this decision we follow the Supreme Court’s direction to consider the nature and circumstances of the present

We turn first to the facts of these offenses and review the sentencing factors set out in California Rules of Court, rule 421. These crimes, perpetrated on two elderly individuals, one of whom was knocked to the ground, and accompanied by a threat of death, involved the potential for great bodily harm. (Cal. Rules of Court, rule 421(a)(1).) The victims were particularly vulnerable because of their age and because they were attacked by surprise in a parking lot, late at night. (Rule 421(a)(3).) The defendant induced a minor to participate in the commission of these violent crimes. (Rule 421(a)(5).) Defendant tried to dissuade Jesse’s mother from giving information to the police. Jesse’s recantation supports the trial court’s conclusion that he tried “to manipulate ... a child, as well as other acquaintances, in order to escape justice in this case.” (Rule 421(a)(6).) None of the mitigating factors contained in California Rules of Court, rule 423(a) apply to the circumstances of these offenses.

Next, we consider the aggravating and mitigating factors relating to defendant and his background. Defendant’s history of criminal conduct extends back to 1972 when he was 15 years of age. He suffered juvenile findings for accessory to robbery, robbery and burglary. As an adult, before the current crimes, defendant had been convicted of seven previous felonies. These offenses include two robberies, shooting at an occupied dwelling, battery on a peace officer, auto theft and a drug offense. He had also been convicted of misdemeanors for assault with a deadly weapon and hit-and-run driving. His probation or parole has been revoked seven times over thirteen years.

Defendant’s background brings him within every aggravating factor specifically set out in California Rules of Court, rule 421(b). His history of violent conduct demonstrates he is a danger to society. (Rule 421(b)(1).) His prior convictions are both numerous and serious. (Rule 421(b)(2).) He has served previous prison terms. (Rule 421(b)(3).) He was on parole when he committed these crimes. (Rule 421(b)(4).) His previous probation and parole performance have been marked by repeated failure. (Rule 421(b)(5).) Not a single mitigating factor found in California Rules of Court, rule 423(b) applies to defendant.

In light of these facts we examine the reasons the trial court gave for exercising its discretion to give the defendant lenient treatment. The court

The two offenses giving rise to the convictions were committed within a relatively brief span of time. They were also serious felonies committed in two different counties. The court did not explain why the time span during which the offenses were committed was particularly mitigating, except to say that the defendant was undergoing a “difficult social situation.” The record before us does not establish that there was anything particularly remarkable about defendant’s social situation at the time he committed the two previous robberies. Also, the court’s conclusion is at odds with its subsequent observation that: “[T]his defendant’s criminal history is one of the worst I’ve ever witnessed. He has been a full and complete failure at probations and paroles in the past. Almost every time he’s granted parole, he’s violated for one reason or another.” At another point the court observed: “Calling to the Court’s attention the defendant’s background is not really helpful for this defendant, because he has a pitiful criminal history. I don’t know how many years we have to accept his social up-bringing as an excuse for his criminal behavior. But he’s now, what, 40 years old? 41. Something like that. And for better than half of his life, he has been a fully active participant in the criminal justice system.”

The court accurately stated the essential reason it struck one of defendant’s prior convictions: “I said it at the time of the original sentencing; that in my view the level of crime in this case did not warrant a 25-year-to-life sentence. And my feelings in that regard haven’t changed.”

Our system of laws confers upon each judge the discretion necessary to weigh punishment and mercy, to find that exquisite balance in which a just sentence reposes. Yet, in a democracy, the scope of a judge’s authority is encompassed by the judgment of the citizens who bestow on the judiciary its authority in the first instance. Under our statutory framework, judges are not empowered to fashion any sentence they choose. The Legislature has created a sentencing structure within which every court must operate. Both the Legislature and the People, by initiative, have adopted a particular sentencing scheme for repeat offenders. A court may not simply substitute its own opinion of what would be a better policy, or a more appropriately calibrated system of punishment, in place of that articulated by the People from whom

Neither the facts of these crimes nor the circumstances of the defendant’s personal history or current situation support a conclusion that he should “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.” (Williams, supra, 17 Cal.4th at p. 161.) Here the court looked beyond the Three Strikes sentencing scheme itself and beyond the “generally applicable sentencing principles.” (Id. at p. 160). Instead, the court simply concluded that life in prison was too harsh a penalty for attempted and completed strong-arm robberies. The Legislature has concluded otherwise, when the defendant has two serious or violent felony priors. The court is certainly entitled to its opinion. It is not entitled however, to impose that individual opinion in lieu of the law of the State of California.

Defendant argues that the trial court did consider the particulars of the crime and defendant’s background. He reviews the record too cursorily. The court did discuss at some length the nature of these crimes and defendant’s history. But the court did not do so in considering whether to strike a prior. Once it had made that decision, it went on to discuss these factors in deciding to impose the upper term. Indeed, the court’s discussion of these factors is extremely critical of defendant’s conduct and history and establishes that the court did not elect to strike a prior because these factors supported a decision for leniency, but instead were based on the court’s antipathy for the law itself.

Defendant relies on People v. Bishop (1997) 56 Cal.App.4th 1245 [ 66 Cal.Rptr.2d 347 ], for the proposition that a reviewing court may not overturn an exercise of discretion simply because it would have decided differently. We acknowledge that principle and are mindful that we may not substitute our conclusions for those of the trial court. We have not done so. Instead we conclude that this trial court’s decision was an abuse of discretion because it was not based on appropriate legal principles, and because it substituted its conclusions for those of the electorate.

In light of the fact that the matter will be remanded for further action, we need not become embroiled in the parties’ debate over whether the court properly calculated defendant’s custody credits.

The order striking one of defendant’s prior convictions is reversed as an abuse of discretion. We decline the Attorney General’s invitation to dictate what sentence the trial court should impose. Should it choose to do so, the court may reconsider the question of defendant’s priors and may exercise its discretion in a manner not inconsistent with this opinion and its own previous findings. The matter is remanded for resentencing and computation of appropriate custody credits.

Parrilli, J., and Walker, J., concurred.