People v. Burke
89 Cal.App.5th 237
Cal. Ct. App.2023Background
- Victim’s purse was stolen; stolen bank cards were used for multiple fraudulent purchases. Defendant was seen on video making one purchase, later found possessing a stolen bank card and fraudulently purchased items.
- Charged with identity theft and bringing contraband into jail; complaint alleged a 2008 robbery conviction as a prior strike under the heading “Enhancement 1.”
- Burke moved under Romero and Penal Code § 1385 to strike the prior strike for sentencing and argued that Senate Bill No. 81 (2021) amendments to § 1385 required courts to “consider and afford great weight” to certain mitigating factors (e.g., nonviolent current offense; prior strike >5 years).
- The prosecution argued SB 81’s § 1385(c) applies only to sentence enhancements, not the Three Strikes prior-conviction scheme. The trial court agreed SB 81 did not apply to strikes and denied the Romero motion.
- Defendant pled no contest to identity theft and admitted the prior strike; court imposed a doubled midterm sentence (4 years) and orally waived fines and fees.
- On appeal the court reviewed the record (Wende), held SB 81’s § 1385(c) does not apply to Three Strikes priors, and directed correction of the abstract of judgment to conform to the oral waiver of fines and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 81’s § 1385(c) mitigating/“great weight” provisions apply to prior Three Strikes convictions | SB 81 expressly applies to "enhancements," and Three Strikes is an alternative sentencing scheme, not an enhancement; thus § 1385(c) does not apply to strikes | SB 81’s legislative history and charging practice treating strikes as enhancements show legislative intent to include strikes within "enhancements" for § 1385(c) | Court held § 1385(c) applies only to statutory "enhancements"; Three Strikes is an alternative sentencing scheme and § 1385(c) does not apply to prior strikes. |
| Whether the abstract of judgment should include fines/assessments when the court orally waived them | The abstract’s fines/assessments were included but prosecution did not object to the court’s oral waiver at sentencing | Defendant relied on the oral waiver and minutes showing waiver; abstract is inconsistent with oral pronouncement | Oral pronouncement controls; court ordered correction of the abstract to strike fines/assessments to conform to the oral waiver. |
Key Cases Cited
- People v. Wende, 25 Cal.3d 436 (1979) (appellate counsel appointed and record review procedure)
- People v. Superior Court (Romero), 13 Cal.4th 497 (1996) (Three Strikes is an alternative sentencing scheme; courts may strike priors under § 1385)
- People v. Jefferson, 21 Cal.4th 86 (1999) (definition of a sentence enhancement as an additional term)
- People v. Tirado, 12 Cal.5th 688 (2022) (standards for statutory interpretation reviewed de novo)
- People v. Canty, 32 Cal.4th 1266 (2004) (plain statutory language controls over conflicting legislative history)
- People v. Sek, 74 Cal.App.5th 657 (2022) (application of SB 81’s § 1385(c) to dismissing enhancements)
- People v. Mitchell, 26 Cal.4th 181 (2001) (oral pronouncement of judgment controls over abstract)
- People v. Tillman, 22 Cal.4th 300 (2000) (failure to object to sentencing matters forfeits claim on appeal)