THE PEOPLE, Plaintiff and Respondent, v. SCOTT ROBERT FUHRMAN, Defendant and Appellant.
No. S055920
Supreme Court of California
Aug. 28, 1997.
16 Cal. 4th 930 | 67 Cal. Rptr. 2d 1 | 941 P.2d 1189
Roberta K. Thyfault, under appointment by the Supreme Court, for Defendant and Appellant.
Charles H. James, Public Defender (Contra Costa) and Ron Boyer, Deputy Public Defender, as Amici Curiae on behalf of Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, M. Howard Wayne, Robert M. Foster and Laura Whitcomb Halgren, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GEORGE, C. J.----We granted review in this case to address three issues involving the interpretation of
With regard to the “brought and tried separately” issue, we conclude that a prior qualifying conviction need not have been brought and tried separately from another qualifying conviction in order to be counted as a separate strike. With regard to the
I.
A.
Based upon a vehicle theft discovered on May 24, 1994, and the robbery of a bank committed later that day, defendant was charged in the current proceeding with one count of robbery (
A jury found defendant guilty of the robbery and vehicle-taking counts, and returned a true finding as to the weapon enhancement. At a separate court trial, the court returned true findings as to the allegations involving defendant‘s prior serious felony, two prior prison terms, and two prior strikes. The court denied a motion to strike one of the two prior strike allegations---involving defendant‘s conviction on July 10, 1989, for assault with a firearm---on which the sentence had been stayed pursuant to
The court thereafter sentenced defendant as a Three Strikes offender on both counts. On count 1 (the current robbery offense), the court imposed a sentence of twenty-five years to life and a consecutive one-year term for the weapon-use enhancement; on count 2 (the vehicle-taking offense), the court imposed a sentence of twenty-five years to life and a consecutive seven-year term (a five-year term under
On appeal, defendant claimed, among other contentions, that the trial court erred in finding that he had two strikes for purposes of the Three Strikes law. The Court of Appeal affirmed the judgment in its entirety, rejecting defendant‘s request that the matter be remanded to the trial court for reconsideration of the sentence in light of this court‘s intervening decision in Romero, supra, 13 Cal.4th 497.3
Because the issues before us involve the consequences, for purposes of the Three Strikes law, of two of defendant‘s prior convictions, we briefly review the circumstances that resulted in those convictions.
In 1989, defendant was charged by information with 11 counts of criminal offenses. The probation report that was before the trial court in the current proceedings states as to those offenses that defendant, while driving a stolen car, collided with another vehicle.4 When the victim of the collision expressed her intent to call the police, defendant brandished a handgun. Defendant then forced his way at gunpoint into a truck that had stopped because of the collision: Defendant ordered the driver of the truck to take him from the scene. The driver thereafter drove approximately two-tenths of a mile, when defendant told her to stop and ordered her from the truck. Defendant and the truck subsequently were found, and defendant was arrested.
Defendant was charged with assault with a firearm on the victim of the collision (
Pursuant to a plea agreement, defendant pleaded guilty to robbery and assault with a firearm, and the remaining counts (including the kidnapping) were dismissed. The trial court sentenced defendant on the robbery count to the middle term of three years, with a two-year enhancement for use of a firearm (
II.
As noted, in the current proceeding the trial court concluded that defendant had two prior strikes within the meaning of the Three Strikes law. (
Defendant acknowledges that, in general, a prior conviction for robbery and a prior conviction for assault with a firearm fall within the category of prior convictions for serious or violent felonies that qualify as strikes under the Three Strikes law. (See
First, defendant contends that separate strikes are created only for prior convictions of offenses that were “brought and tried separately.” Defendant asserts that when, as in the 1989 proceeding, multiple convictions result from multiple counts charged in a single criminal proceeding, only one strike may be counted for purposes of the Three Strikes law.
Second, defendant contends that even if separate strikes generally may be based upon multiple convictions arising out of multiple charges that were brought in a single proceeding, separate strikes nonetheless cannot appropriately be assessed when, as here, the trial court in the prior proceeding determined that separate punishment for the convictions was precluded under
As we shall explain, we conclude that defendant‘s initial contention lacks merit, and that the present case does not present an appropriate vehicle for resolving the
In evaluating defendant‘s contention that prior felony convictions must have been brought and tried separately in order to qualify as multiple strikes, we are guided by well-settled rules. “We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature‘s intent. [Citation.]” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) “‘The court turns first to the words themselves for the answer.’ [Citations.]” (Ibid.) When the statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. (People v. Overstreet (1986) 42 Cal.3d 891, 895 [231 Cal.Rptr. 213, 726 P.2d 1288].) The plain language of the statute establishes what was intended by the Legislature. (See People v. Ramirez (1995) 33 Cal.App.4th 559, 566 [39 Cal.Rptr.2d 374] [it is unnecessary to look beyond the plain words of the statute to determine intent].)
Accordingly, we commence our analysis with a review of the relevant language set forth in the Three Strikes law.
“(1) Any offense defined in
“(A) The suspension of imposition of judgment or sentence.
“(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.
“(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.” (Italics added.)
Nothing contained in the foregoing general statutory language suggests that when a defendant has sustained a prior conviction for an offense designated as a violent or serious felony, the prior conviction may be counted as a strike for purposes of sentencing under the Three Strikes law only if the prior conviction was for an offense that was “brought and tried separately” from another offense that also qualified as a violent or serious felony.
Defendant contends, however, that even though the relevant provisions of
In support of his claim that the statute is ambiguous, defendant notes that
We conclude that defendant‘s position is without merit.
Defendant also contends that the “ambiguous” definition of the term “prior conviction” raises a “broader” issue than the question whether the “brought and tried separately” requirement set forth in
For the foregoing reasons we reject defendant‘s argument that only one strike can arise from a prior case in which multiple felony convictions were adjudicated.
Defendant additionally contends that even if the counting of strikes under the Three Strikes law generally is not limited to prior convictions of offenses that were brought and tried separately, the statute cannot properly be interpreted to permit separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by
As already noted, we conclude that this case is not an appropriate vehicle for deciding the
III.
While the appeal in the present case was pending in the Court of Appeal, we filed our unanimous decision in Romero, supra, 13 Cal.4th 497.
In Romero, we disagreed with those appellate courts that had held that a trial court lacks discretion under the Three Strikes law to strike prior felony conviction allegations on its own motion. Our view of the relevant statutory language, the separation of powers doctrine, and our own case law precedents led us to conclude that “in cases charged under [the Three Strikes law], a court may exercise the power to dismiss granted in
We made it clear in Romero that our decision applies to all cases---both past and future---in which a defendant faced sentencing under the Three Strikes law. We held: “Our holding, which relates only to sentencing, is fully retroactive. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882, 667 P.2d 686]; People v. Tenorio [(1970)] 3 Cal.3d [89,] 95, fn. 2 [89 Cal.Rptr. 249, 473 P.2d 993].) A defendant serving a sentence under the Three Strikes law (
Defendant challenges on two grounds the Court of Appeal‘s conclusion on this point. First, defendant contends that although he did not request that the trial court exercise its discretion under
In response, the People contend that the record does not demonstrate affirmatively that the trial court misunderstood the scope of its discretion under
Contrary to defendant‘s initial argument, we are unable to discern from the record whether the trial court believed that it retained discretion under
The Courts of Appeal, however, have found Romero ambiguous with regard to cases in which the record is silent as to the trial court‘s understanding of the scope of its discretion and where the trial court has not indicated it would decline to strike the prior felony conviction allegation in any event. As previously noted, the Courts of Appeal are divided as to whether remand is required under such circumstances when the issue is raised on appeal.
One line of decisions rendered by the Courts of Appeal, relying upon the general rule that a trial court is presumed to have applied the law correctly in the absence of a clear indication to the contrary, has concluded that in cases in which the trial court record is silent, ordinary principles of appellate review require that an appellate court presume the trial court properly understood that it retained discretion to strike a prior felony conviction allegation. These courts have held that, on appeal, remand for resentencing is unwarranted under such circumstances, and the defendant may seek relief only by filing a petition for writ of habeas corpus. (See People v. Davis (1996) 50 Cal.App.4th 168, 172-173 [57 Cal.Rptr.2d 659]; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055 [57 Cal.Rptr.2d 577]; People v. Alvarez (1996) 49 Cal.App.4th 679, 695-696 [56 Cal.Rptr.2d 814]; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523 [56 Cal.Rptr.2d 749]; see also People v. Rocha (1996) 48 Cal.App.4th 1060, 1072, fn. 7 [56 Cal.Rptr.2d 212] [rejecting the defendant‘s request for remand for resentencing, because no dismissal motion was made in the trial court and the record failed to demonstrate that the trial court misunderstood the scope of its discretion under
In contrast to the foregoing cases, another line of Courts of Appeal decisions has concluded it is unreasonable for an appellate court to presume from a silent record that a trial court that imposed sentence in a Three Strikes case prior to this court‘s decision in Romero understood that it retained discretion to strike prior felony conviction allegations in furtherance of justice under
After consideration of the conflicting Court of Appeal decisions, we conclude that the appropriate course, in a “silent record” case, is for an appellate court to deny the request for remand, without prejudice to the defendant‘s seeking relief in a petition for writ of habeas corpus. In view of the weight of published decisions prior to Romero (holding that a trial court lacked discretion under
We nonetheless conclude that, in the absence of any affirmative indication in the record that the trial court committed error or would have exercised discretion under
Denial of remand on appeal in such cases does not leave a defendant who possesses a meritorious claim, supporting the exercise of discretion in his or her favor, without an effective remedy. A defendant in such a case is free to file a petition for writ of habeas corpus in the sentencing court, setting forth the circumstances that would support setting the matter for a new sentencing hearing and striking one or more prior serious or violent felony convictions pursuant to the provisions of
In the present case, our resolution of defendant‘s claim for relief under Romero is limited to our denial of his request for a remand. We express no
IV.
For the reasons discussed above, we conclude that both of defendant‘s 1989 convictions qualify as strikes for purposes of the Three Strikes law even though they were not brought and tried separately, and further conclude that the Court of Appeal correctly declined to remand the case to the trial court for reconsideration of defendant‘s sentence in light of Romero.
The judgment of the Court of Appeal is affirmed.
Baxter, J., Chin, J., and Brown, J., concurred.
CHIN, J., Concurring.----I agree that in a silent record case like this the defendant is not entitled to have the matter remanded for reconsideration of the sentence in light of People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628] (Romero). A record that is silent does not demonstrate that the trial court “misunderstood the scope of its discretion to strike prior felony conviction allegations. . . .” (Id. at p. 530, fn. 13.)
This conclusion is consistent with the outcome the last time a similar situation arose. In People v. Fritz (1985) 40 Cal.3d 227 [219 Cal.Rptr. 460, 707 P.2d 833], like Romero, we held the trial court had discretion to strike prior conviction allegations established by an initiative. In the wake of Fritz, the appellate courts did not remand cases absent an affirmative showing of error. (People v. Courtney (1985) 174 Cal.App.3d 1004 [220 Cal.Rptr. 328]; People v. Jackson (1986) 178 Cal.App.3d 694, 697-698 [224 Cal.Rptr. 37]; People v. Mack (1986) 178 Cal.App.3d 1026, 1030-1034 [224 Cal.Rptr. 208]; People v. Flint (1986) 180 Cal.App.3d 13, 21-22 [225 Cal.Rptr. 323]; People v. Dolliver (1986) 181 Cal.App.3d 49, 57 [225 Cal.Rptr. 920]; People v. McCutcheon (1986) 187 Cal.App.3d 552, 558-559 [232 Cal.Rptr. 159]; cf. People v. Jackson (1986) 187 Cal.App.3d 499, 511 [231 Cal.Rptr. 889] [remanded for resentencing because the record “indicate[d] the court erroneously believed it lacked discretion to strike the enhancements“].) Today‘s holding follows this recent precedent.
Baxter, J., concurred.
WERDEGAR, J., Concurring and Dissenting.----I agree with the majority‘s conclusion that prior felony convictions, to be counted as strikes, need not have been brought and tried separately. No such requirement appears in the statute. With respect, I disagree with the remainder of the opinion.
We held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 [53 Cal.Rptr.2d 789, 917 P.2d 628] that
After People v. Superior Court (Romero), supra, 13 Cal.4th 497, persons who had already been sentenced under the three strikes law understandably began to try to obtain new sentencing hearings, either on appeal or through habeas corpus. A new sentencing hearing is the only adequate form of relief when a judge ignorant of his or her discretionary power to strike priors has pronounced sentence. Anything else deprives the defendant of the right to offer, in person and with the assistance of counsel, arguments supporting a favorable exercise of discretion. “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882, 667 P.2d 686]) and to be personally present with counsel during all critical phases of the prosecution, including sentencing (
Today, however, the court decides that defendants in so-called “silent record” cases---cases in which the subject of striking prior felony conviction allegations did not arise in the trial court---are not entitled to relief on appeal. This is unjust. In such cases a reviewing court has no reason to believe that the trial judge correctly understood the scope of his or her discretion, or that, if the judge had understood, he or she would not have exercised that discretion in the defendant‘s favor. While some few of these judges may have foreseen our holding in People v. Superior Court (Romero), supra, 13 Cal.4th 497, we can safely assume that most did not, because the Courts of Appeal before Romero had, with near unanimity, declared that trial judges had no discretion. Thus, while a few “silent record” defendants may have valid sentences “made in the exercise of the ‘informed discretion’ of the sentencing court” (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8), most certainly do not. A reviewing court truly desirous of making the holding in Romero “fully retroactive” would require a new sentencing hearing in each such case to assure that every defendant receives that to which he or she is entitled---the benefit of the trial court‘s exercise of informed discretion. This is precisely what we have required in the past when prisoners have filed petitions for habeas corpus seeking relief under similar “fully retroactive” decisions affecting the sentencing discretion of trial judges. (See People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8; In re Cortez (1971) 6 Cal.3d 78, 82-89 [98 Cal.Rptr. 307, 490 P.2d 819];1 see Romero, supra, 13 Cal.4th at p. 530, fn. 13, citing Belmontes.)
Most silent record cases have already been resolved by the Courts of Appeal, which at first denied relief but are now granting relief consistently with the precedent cited above. In the earlier decisions refusing to remand for resentencing, the courts reasoned either that the defendants had “waived” their rights under People v. Superior Court (Romero), supra, 13 Cal.4th 497, by failing to ask the trial judge to strike priors, or that the “presumption of regularity” required a reviewing court to assume that the trial judge knew and correctly applied the law.2 In the more recent decisions, however, courts
Like the more recent Court of Appeal decisions, the majority in the instant case also rejects the “waiver” and “presumption of regularity” arguments. It may therefore come as a surprise to readers of today‘s decision that the court nevertheless rejects the mature product of the appellate courts’ deliberations and refuses to give relief on appeal in “silent record” cases. Recognizing the inadequacy of the legal doctrines of “waiver” and “presumption of regularity” to justify that result, the court fashions a new bar to relief: Relief on a silent record is not “appropriate.” (Maj. opn., ante, at p. 945.) It is not “appropriate,” we are told, because “[i]n many cases that preceded our decision in Romero, the question of striking one or more prior convictions under
The majority‘s reasoning ignores the accepted logic of harmless error analysis. In almost every case in which a reviewing court reverses for error it is possible that the error did not affect the outcome; the reviewing court, however, still grants relief because of the probability the error affected the outcome. As already discussed, in any given “silent record” case preceding
Cal.App.4th 679, 693-696 [56 Cal.Rptr.2d 814]; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521-1523 [56 Cal.Rptr.2d 749].
Another decision to the same effect, People v. Rocha (1996) 48 Cal.App.4th 1060, 1072, footnote 7 [56 Cal.Rptr.2d 212], was subsequently repudiated by the authoring court in People v. Bierman (Cal.App.).
The majority‘s reasoning also ignores this court‘s own precedent. We have already addressed the “appropriateness” of resentencing under similar circumstances and reached this conclusion: “It is obviously impossible in the usual case to discern the inner workings of the original sentencing judge‘s mind and determine in which cases a hearing would be a perfunctory proceeding. It seems equally obvious that the question whether the defendant should be accorded a hearing should not turn upon an empirical predetermination of the likelihood of its success. . . . [T]he presentation to the court of the defendant‘s true legal status is not so meaningless a procedure that it can be discarded when it seeks the favorable exercise of judicial discretion.” (In re Cortez, supra, 6 Cal.3d at p. 86, fn. 8.)
The court gives one more reason to justify its “belie[f]” that resentencing is not “appropriate” on a silent record: efficiency. New sentencing hearings, we are told, “would entail an unduly cumbersome and costly process, necessitating the transportation of a large number of inmates from prisons around the state to the various courts . . . .” (Maj. opn., ante, at p. 946.) The majority describes this argument as “taking into consideration the interests of the administration of justice. . . .” (Id. at pp. 945-946.) The argument, although superficially appealing, is misleading and unpersuasive. Because People v. Superior Court (Romero), supra, 13 Cal.4th 497, was decided more than a year ago, the number of defendants with pre-Romero appeals still pending is very limited. Thus, the image the majority evokes of a “remand en masse” (maj. opn., ante, at p. 946) would today likely involve no more than a few remaining defendants.
In any event, is it really more efficient to require a separate habeas corpus proceeding---a petition, an informal response, an informal reply, an answer, a traverse, an order to show cause, and finally a new sentencing hearing---when the alternative is simply to dispose of the direct appeal by remanding for resentencing? The answer is no---at least not if the goal is to ensure that all defendants convicted under the three strikes law are sentenced by judges who understand the scope of their discretionary powers.
If, on the other hand, the goal is simply to conserve the time of the judicial and correctional bureaucracies, then perhaps relegating defendants to habeas corpus is more efficient, because many prisoners will not file petitions for habeas corpus. And most of those who do will receive from the sentencing court not a hearing, but a postcard with the following words only: “Petition
For these reasons, I dissent.
Mosk, J., and Kennard, J., concurred.
Notes
Further, defendant did not seek review of the Court of Appeal‘s determination that the trial court did not err in sentencing him to separate indeterminate terms of 25 years to life for each current conviction rather than to a single term of 25 years to life, and thus that issue also is not before us in this case. E.g., People v. Bierman (Cal.App.); People v. Milton (1997) 55 Cal.App.4th 365, 368-373 [64 Cal.Rptr.2d 47]; People v. Allen (1997) 53 Cal.App.4th 1127, 1131-1138 [62 Cal.Rptr.2d 274]; People v. Mosley (1997) 53 Cal.App.4th 489, 492-499 [62 Cal.Rptr.2d 268]; People v. Sanders (1997) 52 Cal.App.4th 175, 177-179 [60 Cal.Rptr.2d 507]; People v. Robles (1996) 51 Cal.App.4th 627, 630-631 [59 Cal.Rptr.2d 400]; People v. Ervin (1996) 50 Cal.App.4th 259, 262, footnote 4 [57 Cal.Rptr.2d 728].