People v. CarmonyPeople v. Carmony
Lead Opinion
Opinion
In this case, defendant Keith Ishmeal Carmony pled guilty to one count for failure to register in violation of Penal Code section 290,
I.
Due to a 1983 conviction for oral copulation by force or fear, or with a minor under age 14 (§ 288a, subd. (c)), Carmony had to register as a sex offender pursuant to section 290. In this case, Carmony failed to register with the Redding Police Department within five days of his birthday—October 22, 1999—even though he had registered on September 16 and again on September 23 in order to notify the police of his new address.
The criminal complaint charged Carmony with one count of willful failure to register in violation of section 290, subdivision (g)(2). The complaint also alleged one prior felony conviction (§ 667.5, subd. (b)) and three prior serious and/or violent felony convictions—the strikes (§ 1170.12).
Carmony’s first strike arose from a 1983 conviction
Carmony’s second and third strikes arose from two 1993 convictions for assault with a deadly weapon or by means of force likely to produce great
Carmony ultimately pled guilty to the one count of failure to register (§ 290, subd. (g)(2)), and admitted he had suffered three prior strikes (§ 1170.12) and one prior prison term (§ 667.5, subd. (b)). The court referred the matter to the probation department for a presentence report and asked it to recommend whether the court should dismiss any strikes pursuant to People v. Cluff (2001)
The probation department reported that Carmony was 40 years old at the time of the offense and married. He had a nine-year-old daughter from a previous common law relationship who resided with her mother. According to the department, Carmony had a long history of alcohol and drug abuse, and alcohol had apparently contributed to all of his prior offenses. Although Carmony had never participated in a substance abuse treatment program, he had attended Alcoholics Anonymous meetings. And, prior to committing the current offense, he had obtained a job and performed well, but had quit after only a short time.
The department also noted that Carmony had received written notice of his obligation to register on several occasions, including when he registered on September 23—less than one month before his birthday. His parole agent also allegedly called him on his birthday to remind him of his duty to register. Carmony, however, disputed this.
Finally, the department reported that Carmony had multiple juvenile adjudications and had committed numerous parole violations. His adult criminal record was also lengthy and included numerous other convictions in addition to his three strike offenses and his two prior convictions for failure to register. Specifically, Carmony suffered: (1) two separate convictions for second degree burglary in 1977 and 1978 (
At the end of its presentence report, the probation department suggested that the court could appropriately strike one of Carmony’s prior serious and/or violent felony convictions in light of Cluff, supra,
The Court of Appeal reversed, holding that the trial court abused its discretion by refusing to dismiss any of Carmony’s strikes. Although the court “acknowledged that [Carmony’s] criminal record [was] serious,” it found that his current offense “must be characterized as ‘the most technical violation of the section 290 registration requirement we have seen.’ ” The court further concluded that “commission of the current offense bears little indication that defendant has recidivist tendencies to commit other offenses” and that the offense “was passive and without practical impact in a way that many misdemeanor offenses and minor drag crimes are not.” Based solely on the “nature and circumstances of the present offense,” the Court of Appeal found that Carmony fell outside the spirit of the three strikes law and reversed.
We granted review.
n.
A.
Under section 1385, subdivision (a), a “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.” “In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to . . . section 1385(a).” (People v. Williams (1998)
As an initial matter, we note that the relevant case law overwhelmingly supports this conclusion. Although we have not resolved this question in the context of a court’s refusal to strike a sentencing allegation, we have, in the past, reviewed a court’s decision not to exercise its section 1385 discretion to dismiss in other contexts for abuse of discretion. (See People v. Memro (1995)
Like our Courts of Appeal, we follow our own lead and hold that a trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion. We reach this holding not only because of the overwhelming case law, but also as a matter of logic. “Discretion is the power to make the decision, one way or the other.” (Myers, supra,
We therefore reject Benevides to the extent it holds that appellate courts lack authority to review a trial “court’s informed decision” not to “exercise its section 1385 power in the furtherance of justice.” (Benevides, supra,
This reasoning, however, is faulty. A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to “invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.” (Rockwell v. Superior Court (1976)
In light of the rights accorded to a defendant and the limitations on the trial court’s power under section 1385, the defendant’s inability to move to dismiss under section 1385 should not, as suggested by Benevides, preclude him or her from raising the erroneous failure to do so on appeal. (See Gillispie, supra,
The fact that section 1385 only states that “[t]he reasons for the dismissal must be set forth in an order entered upon the minutes” (§ 1385, subd. (a)) and does not require a court to “explain its decision not to exercise its power to dismiss or strike” does not compel a different conclusion. (Benevides, supra,
B.
Our inquiry does not, however, end with our decision to apply the deferential abuse of discretion standard. We must still determine whether the trial court abused its discretion by refusing to strike Carmony’s priors. We conclude it did not.
In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, “ ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have
Because “all discretionary authority is contextual” (Alvarez, supra,
“[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra,
Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. “[I]n 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 felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may 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,
In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not “aware of its discretion” to dismiss (People v. Langevin (1984)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more” prior conviction allegations. (Myers, supra,
This case, however, is far from extraordinary. Carmony failed to register even though he was informed of his duty to do so on several occasions. He had a lengthy and violent criminal record—which included two prior convictions for failing to register. He had also done little to address his substance abuse problems, had a spotty work history, and appeared to have poor prospects for the future. All of these factors were relevant to the trial court’s decision under Romero, and the court properly balanced them in concluding
By contrast, the Court of Appeal, in reversing, erroneously focused on a single factor—the nature and circumstances of Carmony’s current offense— to the exclusion of all others. (See People v. Garcia (1999)
Finally, Cluff does not dictate a contrary conclusion. Even assuming Cluff was correctly decided, it is distinguishable. In Cluff, the defendant failed to register on his birthday in violation of section 290. Following the defendant’s conviction for failure to register, the trial court denied his “Romero motion” and sentenced him “to a term of 25 years to life.” (Cluff, supra,
The Court of Appeal reversed. According to the court, “none of the facts before the court—whether considered separately or together—support the inference that Cluff failed to update his registration in order to obfuscate his residence or escape the reach of law enforcement.” (Cluff, supra,
Unlike the trial court in Cluff, which relied on a factor—the defendant’s intentional obfuscation of his whereabouts—allegedly unsupported by the record, the trial court in this case refused to strike defendant’s prior convictions based on factors allowed under the law and fully supported by the record. Thus, the Court of Appeal in this case, unlike the court in Cluff did not conclude that the trial court relied on improper factors in refusing to strike. Rather, it simply disagreed with the court’s weighing of these factors. And in doing so, it erred. (See Alvarez, supra,
III.
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise stated.
Carmony’s address had not changed in the interim. He also claimed that his parole agent knew his address and that he would have registered if someone had advised him of his obligation to do so.
As noted in the Court of Appeal opinion, “[t]he charging document refers to the date of conviction for the offense as April 1980, but the probation report indicates it was in 1983."
The court therefore declined to consider whether Carmony’s sentence constituted cruel and/or unusual punishment.
(See, e.g., People v. Jones (2002)
We do not, however, address the issue of whether the sentence violates the constitutional guarantees against cruel and/or unusual punishment or double jeopardy, and leave the resolution of this issue for the Court of Appeal on remand.
Concurrence Opinion
In this case, the majority holds that the trial court’s decision not to dismiss a strike against a defendant pursuant to Penal Code section 1385, subdivision (a) is reviewable under an abuse of discretion standard, and that the trial court in this case did not abuse its discretion in refusing to dismiss any strikes. The majority leaves open the issue of whether the resulting sentence of 26 years to life “violates the constitutional guarantees against cruel and/or unusual punishment or double jeopardy . . . .” (Maj. opn., ante, at fn. 6.) Obviously, it would be an abuse of the trial court’s discretion not to dismiss the strike if refusing to do so leads to a sentence that violates the state or federal prohibition against cruel and unusual punishment. Therefore, the majority holding that the trial court did not abuse its discretion is actually a holding that it did not abuse the statutory discretion given to it by section 1385, subdivision (a) and the “Three Strikes” law. In arriving at that holding, the majority makes clear that there is a class of cases in which an appellate court can determine, without reaching any constitutional issues, that the trial court abused its discretion on statutory grounds.
This class of cases falls essentially into two categories, which may be termed procedural and substantive. The former occurs when the trial court proceeds in an improper manner, i.e., “where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Maj. opn., ante, at p. 378.) The latter occurs when, notwithstanding the lack of the above irregularities, the resulting sentence is clearly erroneous because “the relevant factors described in [People v.] Williams [(1998)]
The majority concludes that the sentence in this case falls into neither of those two categories. I agree in light of the extent of defendant’s prior criminal record and his poor prospects. And yet, it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute—failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then—that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies. (See Vitiello, California’s Three Strikes and We’re Out: Was Judicial Activism California’s Best Hope? (2004) 37 U.C. Davis L.Rev. 1025, 1026 [“Widely reported Three Strikes cases have involved trivial offenses—such as the theft of a bicycle, a slice of pizza, cookies or a bottle of vitamins—that have resulted in severe sentences”].) Subject to the caveat that the sentence may yet be overturned on constitutional grounds, I reluctantly concur in the majority opinion. But because the standard for what constitutes cruel and unusual punishment is itself extremely rigorous (see, e.g., Lockyer v. Andrade (2003)
Chin, J., concurred.
Those factors include “the nature and circumstances of [a] defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects . . . .” (People v. Williams, supra,