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Criminal Law-Sentencing-Three Strikes-Dissent
(People v. Casper)
 

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Criminal Law-Sentencing-Three Strikes-Dissent
(People v. Casper)
 

DISSENTING OPINION BY KENNARD, J.

This case presents a sentencing issue under the highly complex “Three Strikes and You’re Out Law” (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, hereafter the Three Strikes law).[6]  The issue is this:  When a court at sentencing exercises its discretion under section 1385 to dismiss a prior felony conviction alleged as a strike, and it dismisses that conviction as to some but not all counts of which the defendant was convicted, does the Three Strikes law nonetheless require the court to impose consecutive sentences on all counts?  Otherwise stated, does the dismissal of the prior conviction as to a particular count free that count from all or only some of the restrictions that the Three Strikes law imposes?

The majority holds that the Three Strikes law requires consecutive sentences on all counts, even those as to which the only qualifying prior conviction has been dismissed under section 1385.  I disagree.  When a prior conviction alleged as a strike has been dismissed as to a particular count, the effect of the dismissal is to release that count entirely from the restrictions imposed by the Three Strikes law, including the consecutive sentencing requirement.

I

During a one-month period in late 1999, defendant David James Casper committed 19 separate robberies and one residential burglary.  For these crimes, he pled guilty to 35 felony counts and admitted, among other things, one prior felony conviction alleged under the Three Strikes law.  At sentencing, the court exercised its authority under section 1385 to dismiss the prior conviction as to all but one of the counts.  Believing it was nonetheless required by the Three Strikes law to impose consecutive sentences on all offenses committed during separate incidents, the court sentenced defendant to an aggregate term of 104 years and eight months in state prison—effectively imprisonment for life without possibility of parole.  The court noted for the record that it would have sentenced more of the terms concurrently had it possessed the discretion to do so.

The Court of Appeal vacated the sentence and remanded for resentencing.  It concluded that the Three Strikes law does not require consecutive sentencing of counts as to which the only qualifying prior conviction has been dismissed under section 1385.

II

Section 1385, enacted in 1872, authorizes a judge “in furtherance of justice” to “order an action to be dismissed.”  Because “[t]he authority to dismiss the whole includes, of course, the power to dismiss or ‘strike out’ a part” (People v. Burke (1956) 47 Cal.2d 45, 51), the trial court’s power under section 1385 to dismiss the entire action necessarily includes the power to dismiss a part of the action, including a prior conviction alleged for purposes of increasing the sentence.  Accordingly, this court has held that section 1385’s dismissal power extends to a prior conviction alleged for purposes of sentencing, and that the trial court may exercise this power either before or after the prior conviction has been admitted or established by the evidence.  (People v. Burk, supra, at p. 51; accord, People v. Thomas (1992) 4 Cal.4th 206, 209.)

The Three Strikes law requires the prosecution to allege certain prior convictions for sentencing purposes.  (§§ 667, subd. (f)(1) [“[t]he prosecuting attorney shall plead and prove each prior felony conviction . . . .”], 1170.12, subd. (d)(1) [same].)  A defendant with one qualifying prior conviction (see §§ 667, subd. (d) [specifying which prior felony convictions qualify], 1170.12, subd. (b) [same]), commonly known as a second strike defendant, is subject to various sentencing consequences, two of which are relevant here.  First, the punishment for a new offense is doubled.  (§§ 667, subd. (e)(1) [“the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”], 1170.12, subd. (c)(1) [same].)  Second, consecutive sentences are mandatory if there is more than one new offense, unless the offenses are interrelated.  (§§ 667, subd. (c)(6) [“If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . .”], 1170.12, subd. (a)(6) [same].)

Prior convictions alleged under the Three Strikes law are subject to the trial court’s dismissal power under section 1385.  (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.)  Noting that “the statutory power to dismiss in furtherance of justice has always coexisted with statutes defining punishment,” this court explained that a statute defining punishment will not be construed as eliminating a court’s dismissal power “ ‘absent a clear legislative direction to the contrary.’ ”  (Id. at p. 518.)  This court found no such direction in the Three Strikes law.  (Id. at pp. 519-529.)  Indeed, the wording of subdivision (f)(2) of section 667, which expressly recognizes the court’s dismissal power under section 1385, and the legislative history of the Three Strikes law, which included the rejection of an amendment that would have permitted the court to exercise the power only on the prosecutor’s motion, persuaded this court that the Legislature deliberately chose not to eliminate or restrict the trial court’s power to dismiss prior felony convictions.  (People v. Superior Court (Romero), supra, at p. 520.)

Under the Three Strikes law, a qualifying prior conviction need not be alleged separately as to each count, but may be alleged once as to all counts.  (People v. Garcia (1999) 20 Cal.4th 490, 502.)  Nevertheless, a qualifying prior conviction alleged once as to all counts may be stricken selectively as to individual counts.  (Ibid.)  In reaching this conclusion, this court again relied on the principle that the power to dismiss the whole includes the power to dismiss a part.  “[T]hough a defendant’s prior conviction status does not change from one count to another, and though it is appropriate to allege that status only once as to all current counts, the effect under the Three Strikes law of a defendant’s prior conviction may change from one count to another.”  (Ibid.)

What is the purpose of the trial court’s dismissal power under section 1385 as applied to prior conviction allegations?  This court has explained that the “purpose of striking a sentencing allegation under section 1385 is to effectuate the decision that ‘ “in the interest of justice” defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact.’ ”  (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 524, fn. 11, quoting People v. Burke, supra, 47 Cal.2d at p. 50.)  Thus, the purpose of the power is to allow the sentencing court some discretion to reduce the sentence that would otherwise be imposed to a level that is consistent with defendant’s individual culpability and society’s interests in punishing and deterring criminal behavior.  (See People v. Williams (1998) 17 Cal.4th 148, 160-161 [discussing factors a trial court may consider when exercising its section 1385 discretion in a Three Strikes case].)  In short, “the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.”  (People v. Garcia, supra, 20 Cal.4th at p. 500.)

The majority concludes that when a trial court exercises its section 1385 power to dismiss a prior conviction alleged under the Three Strikes law, and it dismisses the prior conviction as to some but not all of the new offenses, the effect of the dismissal is to free the affected counts from the term-doubling requirement but not from the consecutive-sentencing requirement.  Yet nothing in the language of the Three Strikes law or section 1385 requires or justifies this conclusion.  On the contrary, the effect of dismissing the prior conviction as to a particular count is to place that count beyond the reach of the Three Strikes law, and to permit the trial court to impose sentence on that count as if defendant had no prior conviction.

The majority notes that consecutive sentences are mandatory under the Three Strikes law unless the current convictions are “committed on the same occasion” or “arise[e] from the same set of operative facts” and that this provision requiring consecutive sentences is not qualified by any requirement that prior conviction allegations attach to the particular counts.  (Maj. opn., ante, at pp. 4-5.)  But these observations are beside the point.  The Three Strikes law nowhere refers to prior conviction allegations attaching to particular counts because, as this court has explained, the Three Strikes law permits the prior conviction to be alleged “once as to all counts” (People v. Garcia, supra, 20 Cal.4th at p. 502) and does not expressly provide for the selective application of the Three Strikes sentencing scheme to some counts but not others.  The lack of such an express provision, however, did not prevent this court from rejecting the argument that “prior conviction allegations describe a status that a defendant either does or does not have, but cannot have with respect to one count and not another.”  (Ibid.)  This court concluded, to the contrary, that a prior conviction allegation may be dismissed selectively, on a count-by-count basis.  (Ibid.)

The majority does not deny that a trial court may dismiss a prior conviction selectively, on a count-by-count basis, but it imposes an additional and irrational form of selectivity, over which the trial court has no control.  According to the majority, the dismissal of a prior conviction on a count-by-count basis operates selectively in the sense that, as to the affected counts, the prior conviction allegation ceases to exist for one purpose (term doubling) but not for another purpose (consecutive sentencing).  This interpretation is not only confusing and conceptually awkward, it is also inconsistent with the underlying purpose of the section 1385 dismissal power in the Three Strikes context, which is to avoid unjust sentences by allowing some or all of the current offenses to be punished outside the Three Strikes sentencing scheme.  Under the majority’s holding, the trial court must dismiss the prior conviction as to all counts to avoid mandatory consecutive sentencing on any of the counts.

The majority’s holding substantially and unnecessarily impairs trial court discretion to impose just punishment under the Three Strikes law by dismissing prior conviction allegations or findings selectively, on a count-by-count basis.  Under the majority’s holding, the affected counts are at once inside and outside the purview of the Three Strikes law.  Agreeing with the Court of Appeal here, I would hold that the affected counts are not subject to either the term-doubling or the mandatory-consecutive-sentencing requirements of the Three Strikes law.

People v. Casper 6/3/04 SC S114285 three strikes law

Date Posted	Docket #/ File Format	Description
Jun 03 2004	S114285 [PDF] [DOC]	P. v. Casper 6/3/04 SC

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California Code of Civil Procedure 1003-Motionn  
Criminal Law-Sentencing-Three Strikes-Majority Opinion -(People v. Casper)
 

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