In the published portion of this “Three Strikes” case we address whether an appellate court has the authority to review a trial court’s decision to not exercise its Penal Code section 1385 1 discretion to dismiss or strike a prior conviction on its own motion in the interests of justice. As will be discussed, a defendant has no right to make a motion under section 1385, and a trial court is under no obligation to rule on such a “motion” or state reasons for its refusal to consider such a request or “motion.” In many cases, like this one, the trial court refuses to exercise its discretion and provides no reasons for its inaction. Under these circumstances, we conclude there is only a limited right to appellate review for alleged abuse of discretion. If the record shows the court was aware of its discretion, summary denial of the allegation is generally the appropriate disposition. We hold this is an appropriate case for summary denial of defendant’s contention.
Procedural History
By information, defendant was charged with second degree burglary (count 1; § 459), petty theft with a prior (count 2; § 666), and receiving stolen property (count 3; § 496). It was further alleged defendant had suffered two strike prior convictions (§ 1170.12, subd. (c)(2)(A)), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b).
Defendant pled not guilty and denied the allegations. In bifurcated trials a jury found defendant guilty as charged, and subsequently the trial court found the prior conviction/prison term allegations true.
Defendant’s motion for a new trial was denied. He was sentenced to prison for a term of 25 years to life on count 1, with the term imposed on count 2 ordered stayed. Count 3 was dismissed, and the prior prison term enhancement was ordered stricken. Defendant received 399 total days of credit for time served, including conduct credit.
Timely notice of appeal was filed.
Factual History
At approximately 12:30 p.m. on January 1, 1996, a female customer who refused to identify
Charlotte Rogers, the assistant manager, reported the theft to mall security and to the police. Rogers then determined that 20 sweaters with a sales price of $22.99 each were missing from displays located near the north doors of the store.
Detective Corey Sumpter of the Visalia Police Department was assigned to investigate the theft, and he ascertained the vehicle in which the thieves had fled was registered to Juan and Mary Varela. On January 3, 1996, Sumpter contacted Mary at her residence. 2 Christina Manriquez was present in the kitchen making breakfast. Mary told Sumpter that defendant and Manriquez had borrowed her vehicle on January 1st and returned with a large number of sweaters. Mary told Sumpter she had purchased a sweater with a J C Penney tag from Manriquez for $5. She and Manriquez also gave Sumpter consent to search the home for the sweaters. Sumpter found a woman’s sweater in the bedroom occupied by Manriquez and defendant. The two sweaters were later identified at trial as being the same type as those that were stolen. No other- sweaters were found. Manriquez was arrested and taken into custody.
Later that day, Sumpter contacted Juan at his residence. Juan told Sumpter that defendant and Manriquez had borrowed his vehicle and returned later in the afternoon with about ten sweaters and two to three pairs of jeans. He did not know where they had come from. Juan also told Sumpter his wife had bought one of the sweaters.
Later, defendant was arrested in a neighboring yard. When initially approached by officers, he began to run, but was immediately subdued. After waiving his constitutional rights, defendant denied having been involved in the theft, and stated he was not with anyone on New Year’s Day. He denied borrowing the Varelas’s vehicle and denied going anywhere in that vehicle with Manriquez. Sumpter advised defendant that Manriquez had already been arrested for the theft, and asked whether he had been with her that day. Defendant stated he probably was because he was always with her. Sumpter advised defendant that Manriquez had confessed. In response, defendant maintained neither he nor Manriquez was involved in stealing the sweaters.
On January 31, 1996, Sumpter again contacted Juan and Mary at their residence and spoke to them separately. Juan continued to maintain that defendant and Manriquez had taken his vehicle and stated defendant had a large bag when he returned that afternoon. Juan stated he tried on a pair of pants that were too big. Mary said she was asleep on the living room couch when defendant and Manriquez left the residence. When they returned later that afternoon, she noticed defendant was carrying a bag. Mary said that later Manriquez asked her if she wanted to buy a sweater, which she did for $5, knowing it was probably stolen.
Later, Sumpter received information from Manriquez’s mother that Juan had been involved in the theft and drove the vehicle. He then spoke to Juan and told him he had information that Juan had been the driver, and that Juan had lied to him. Juan asked what would happen if he told the truth. Sumpter said if he told the truth, he would not arrest or charge him, and would consult the district attorney’s office about immunity in exchange for his testimony. Juan agreed to tell the truth on the condition he not be charged. Juan then admitted lying, and told Sumpter he had driven defendant and Manriquez to the J C Penney Store in his vehicle to steal merchandise; Manriquez went in with defendant, who was carrying a large white bag; they came out with sweaters in their arms and entered his vehicle; and defendant gave him heroin in exchange for driving them.
At trial, Juan testified under a grant of immunity that on January 1, defendant came into the living room and said, “ ‘Let’s go. Let’s go to the store and go boosting.’ ” Juan interpreted this to mean stealing. Juan
Juan admitted lying to Sumpter, and said he had suffered two prior convictions for providing false information to police officers.
Mary testified she had been sleeping on her couch the morning of January 1. Later, she saw defendant and Manriquez enter the house. Defendant was carrying a white bag, and Manriquez had some sweaters. Manriquez showed her the sweaters and offered to sell one to her for $6. Mary admitted she knew the sweaters were stolen. In fact, a short time after defendant and Manriquez had returned, Mary learned Juan had driven their Blazer during the theft. That evening, Mary purchased a stolen sweater for $5. Subsequently, she saw defendant leave the house with the white bag. Mary admitted lying to Detective Sumpter so her husband would not get in trouble.
Discussion
I.-V. *
VI. There was no error in refusing to strike defendant’s prior serious felony conviction.
Defendant argues the trial court abused its discretion by refusing to strike one of his prior serious felony convictions in the furtherance of justice pursuant to section 1385. 5 The People contend the court’s refusal to exercise its discretion to strike a prior is not appealable. Alternatively, the People argue the court did not abuse its discretion. For the reasons that follow, we hold there is a limited review of the matter on appeal.
At trial, defense counsel urged the trial court, in off-the-record discussions, to strike defendant’s prior convictions under
People
v.
Superior Court (Romero)
(1996)
Neither defendant nor the People provide authority which squarely resolves the question of whether an appellate court has authority to review a trial court’s decision (or nondecision) to not exercise its section 1385 discretion to strike or dismiss a prior conviction on its own motion. 6
Defendant cites
People
v.
Warren
(1986)
When a court exercises its extraordinary power of dismissal, it must explain its action on the record in order to facilitate review and public awareness. (§ 1385, subd. (a);
People
v.
Bracey
(1994)
Appellate review is available when a trial court’s refusal or failure to exercise its section 1385- discretion to dismiss or strike is based on a mistaken belief regarding its authority to do so. In those situations, relief on appeal is to remand or permit the defendant to petition by writ of habeas corpus. The appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss.
(People
v.
Superior Court (Flores), supra,
Here, we have a record which shows the trial court was aware of its discretion pursuant to section 1385, and refused to exercise it to strike any of defendant’s priors. Under these circumstances, we summarily reject defendant’s contention that the trial court abused its discretion by not striking any of his priors.
VII.-IX. *
Disposition
The judgment is affirmed.
Stone (W. A.), Acting P. J., and Buckley, J., concurred.
A petition for a rehearing was denied June 25, 1998, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied September 2, 1998.
Notes
All future references are to the California Penal Code unless otherwise indicated.
During this time, defendant lived in the Varela residence, occupying a bedroom with his girlfriend, Christina Manriquez, who is Mary Varela’s niece.
See footnote, ante, page 728.
Section 1385. subdivision (a) provides, in pertinent part: “(a) The judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.”
For the first time in a petition for rehearing defendant cites
People
v.
Gillispie
(1997)
Of course, where the trial court expresses clearly improper reasons for refusing to exercise its discretion, the appellate court must correct the error. For example, if the trial court indicates it would normally exercise its power to dismiss under the circumstances of the case but refuses to do so on the basis of the defendant’s race, gender, religious beliefs, etc., such a reason would be arbitrary and capricious as a matter of law. and would thus merit appellate intervention. (Accord.
People
v.
Gillispie. supra.
See footnote, ante, page 728.