People v. BurkePeople v. Burke
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental briefing on whether the amendments to section 1385 enacted by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) apply to prior strike convictions. Defendant contends the language and legislative history demonstrate the Legislature‘s intent that the amendments apply to prior strike convictions. The People disagree, arguing the plain language of the statute demonstrates the amendments apply only to enhancements. We find the People‘s argument more persuasive.
Having reviewed the supplemental briefing and the record as required by Wende, we have, however, discovered errors that require correction. There is a discrepancy between the trial court‘s oral pronouncement of judgment and the abstract of judgment regarding fines and fees. We find no other arguable error that would result in a disposition more favorable to defendant. We will order the court to correct the abstract of judgment to conform with the oral pronouncement of judgment, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Abigail W.‘s purse was stolen from the employee breakroom at her job. Two of her bank cards were used to make fraudulent purchases at several local businesses.
Defendant was charged with identity theft and bringing contraband into jail. In addition, the complaint included a prior strike allegation for a robbery conviction sustained in 2008, under the heading “ENHANCEMENT 1.”
Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and section 1385, defendant made a motion for the court to exercise its discretion to dismiss the prior strike for purposes of sentencing. In that motion, defendant also argued pursuant to recent changes to section 1385 added by newly enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1), the trial court was required to ” ‘consider and afford great weight’ ” to applicable mitigating factors when deciding whether to dismiss the strike in the interest of justice. Specifically, defendant argued the court was required to give great weight to the fact that his current offense was not a violent felony (
The prosecution opposed the motion. The prosecution argued the new provisions of section 1385, subdivision (c) applied to enhancements, and a prior strike conviction is not an enhancement for purposes of section 1385. Rather, the prosecution contended that
Defendant replied the plain meaning and legislative intent of Senate Bill No. 81 made clear the Legislature intended to provide clear guidance to judges on how and when they may dismiss sentencing enhancements and other allegations that would lengthen a defendant‘s sentence. As evidence of the plain meaning of “enhancements” as including strikes, defendant noted the district attorney‘s office titles all strikes as enhancements in its charging documents. Defendant also argued that for purposes of section 1385, the Three Strikes law could be both an alternative sentencing scheme and an enhancement.
At the Romero hearing, the trial court noted it and other members of the criminal trial court bench had determined Senate Bill No. 81 was not applicable to prior strike convictions, although it also agreed the statute was “a bit confusing as to [its] application to prior strikes.” The court concluded Senate Bill No. 81 did not apply to strikes. After additional discussion from the parties on the motion to strike (absent the application of Senate Bill No. 81), the trial court determined it could not find defendant fell outside the spirit of the Three Strikes law and denied the Romero motion.
Defendant then pled no contest to identity theft and admitted the prior strike “enhancement.” In accordance with the plea, the trial court sentenced defendant to “a midterm sentence of two years doubled for the . . . , strike . . . , to four years.” The court awarded defendant 329 days of presentence custody credits. The trial court waived fines and fees.
Defendant appeals. The trial court granted defendant‘s certificate of probable cause.
I
Application Of Senate Bill No. 81 To Prior Strike Convictions
In response to our request for supplemental briefing, defendant argues the Legislature intended the amendments to section 1385 made by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) to apply to prior strike convictions and that the legislative history supports this interpretation. The People contend the plain language of the statute unambiguously applies only to enhancements, and the Three Strikes law is not an enhancement. We find the People‘s argument more convincing.
Whether the amendments to section 1385 apply to prior strike convictions is a question of statutory interpretation which we review de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.) “To resolve whether defendant‘s interpretation of the . . . statute[] is correct, we are guided by familiar canons of statutory construction. ‘[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citation.] In determining that intent, we first examine the words of the respective statutes: ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” [Citation.] “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.’ [Citation.]” ’ [Citation.] If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] ‘We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” (People v. Coronado (1995) 12 Cal.4th 145, 151.)
Under section 1385, subdivision (a) the trial court “may, . . . in furtherance of justice, order an action to be dismissed.” This authority under section 1385,
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) amended section 1385 to add specific mitigating factors the trial court must consider when deciding whether to strike enhancements from a defendant‘s sentence in the interest of justice. (
Subdivision (c) of section 1385 expressly applies to the dismissal of an “enhancement.” (
Abstract of Judgment
Having reviewed the record, as required by Wende, we have discovered the abstract of judgment reflects clerical errors that require correction. Specifically, the abstract of judgment reflects imposition of a $300 restitution fine, an identical conditionally suspended parole revocation fine, a $40 court operations assessment, and a $30 conviction assessment. The trial court, however, did not orally pronounce these fines and fees, nor does the minute order reflect imposition of these fines and fees.
Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Here, the court stated, without objection by the prosecution, “In light of the prison sentence, the Court will waive fines and fees.” Given the prosecution‘s lack of objection, any claim of error would be forfeited. (People v. Tillman (2000) 22 Cal.4th 300.) Nor would correction of this error result in a disposition more favorable to defendant. We therefore see no error in the court‘s oral pronouncement, and it must control over the abstract of judgment. Accordingly, we will order the trial court to correct the abstract of judgment to strike the fines and fees, consistent with the oral pronouncement of judgment.
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to strike the $300 restitution fine and corresponding parole revocation restitution fine, the $40 court operations assessment, and the $30 criminal conviction assessment. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/
ROBIE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
MAURO, J.