THE PEOPLE, Plaintiff and Respondent,
v.
NATHANIEL MILTON, Defendant and Appellant.
Court of Appeals of California, Third District.
*366 COUNSEL
Thоmas L. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Joel Carey, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
*367 OPINION
RAYE, J.
A jury convicted defendant of escaping from prison by force (Pen. Code, § 4530, subd. (a)) and found he incurred five serious felony convictions (Pen. Code, § 667).[1] He was sentenced to 25 years to life in prison.
On appeal, he contends: (1) the record contains insufficient evidence of force to support his conviction; (2) this case must be remanded to allow the trial court to exercise its discretion to strike his serious felony convictions; and (3) his sentence is cruel and unusual punishment. We shall affirm the conviction, but vacate the sentence and remand this case to the trial court to allow the court to exercise its discretion whether to strike defendant's "strikes."
FACTS
As the facts are not in dispute, only a brief summary is necessary. Defendant and his codefendant, Raymond Delgado, inmates assigned to a minimum security area of Folsom prison and who worked in the recycling center, escaped by cutting two aluminum retaining pins, or tie down rings, which held the bоttom of a chain link fence to a horizontal bar running along the top of a cinder block wall, and stretching the fence so that a grown man could crawl under it. To cut the pins, the men used a "tipping tool" or a golf club with a hooked head which is used to sort the city garbage processed by the prison. The police eventually apprehended the two men after stopping a motоr home in which the two had gained admittance.[2]
Defendant testified that he and Delgado became intoxicated on wine defendant found in the city garbage on the day in question. Later, defendant saw Delgado rolling in the dirt outside of the chain link fence as if something were attacking him. Defendant then followed the panicked and paranoid Delgado through various escapades, intending to rеturn with him to the prison facility. Eventually realizing Delgado was too frightened to return to the prison, they obtained a ride from the motor home driver on the pretext that they had been fighting a fire and needed a ride to the police or fire station. Once at the police or fire station, defendant intended to turn Delgado and himself in.
*368 I. Sufficiency of the Evidence[*]
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II. Remand Under Romero
(1) Defendant contends on appeal that this matter must be remandеd to the trial court to permit that court to exercise its discretion to dismiss his serious felony convictions pursuant to People v. Superior Court (Romero) (1996)
In addressing this issue, we recognize a division of opinion among the Courts of Appeal. Several districts, relying on the principle that reviewing courts will indulge every reasonable presumption to uphold a judgment, have declined to presume error where the record did not establish on its face that the trial court misunderstood the scope of its discretion. (People v. White Eagle (1996)
In People v. Superior Court (Romero), supra,
*370 In at least one respect the import of footnote 13 is clear: Absent some affirmative indication in the record that the trial court was aware of its discretion or, in any event, would not have exercised it, a defendant is entitled to further review of a sentence imposed under the three strikes law. White Eagle and other cases purporting to apply "normal rules of appellate review," conclude that further review can only be secured by filing a petition for habeas corpus. We are not persuaded that the Supreme Court intended to impose such a cumbersome procedure when relief can be very conveniently and expeditiously provided by appeal.[5]
The approach of footnote 13 replicates that of People v. Belmontes (1983)
Footnote 8 in Belmontes, like footnote 13 in Romero, contemplated habeas corpus review where "relief on appeal is no longer available" (People v. Superior Court (Romero), supra,
The "normal rules of appellate review" alluded to in White Eagle do not apply when the law is unsettled at the time the trial court must apply it. On this point, People v. Chambers (1982)
No hearing was held to consider mitigating circumstances (§§ 190.3 & 190.4) in Chambers because the prosecution had not sought the death penalty. (People v. Chambers, supra,
After sentencing in Chambers, the Supreme Court held that trial courts have the authority under section 1385 "to dismiss special circumstance findings in order to make it possible for a рerson to be eligible for parole." (People v. Williams (1981)
The Chambers court held a remand for resentencing was equally as appropriate in a silent record case as it was in Williams. "At the time of [Chambers's] sentencing, it had not been established that sentencing court had discretion in Penal Code section 190.2 cases. [Citations.] Under those circumstances, and in the absence of any suggestion in the record that the trial court *372 exercised its discretion, the usual presumption that the trial court considered the various alternatives and acted correctly a presumption which the People urge upon us as grounds for refusal to remand can have no logical application. Given the nature of the appellant's interest at stake, the relatively minor inconvenience to the state in requiring reconsideration in accordance with Williams, supra,
The rule announced in Chambers reflects a commonsense approach to reviewing decisions rendered by a trial court at a time when the law is in a state of flux or, worse yet, cоntrary to a subsequent decision of the Supreme Court. As the Supreme Court recognized in citing Chambers with approval, "It is generally presumed that a trial court has followed established law ... but this presumption does not apply where the law in question was unclear or uncertain when the lower court acted." (People v. Jeffers (1987)
When defendant was sentenced on November 27, 1995, every published case addressing the trial cоurt's authority to strike "strikes" on its own motion pursuant to section 1385 held the trial court no longer retained that discretion. Furthermore, at the time of defendant's sentencing, the Supreme Court had granted review of the majority of those opinions, while the remainder were not yet final. Indeed, almost seven months passed before the Supreme Court issued its decision in People v. Superior Court (Romero), supra,
We therefore are not persuaded by the reasoning of White Eagle. We are even less persuaded by People v. Rocha, supra,
We shall vacate defendant's sentence and remand this matter to the trial court to allow that court to exercise its discretion in light of Romero.
III. Cruel and Unusual Punishment[]
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Disposition
The conviction is affirmed, the sentence is vacated, and the matter is remanded to the trial court for the purpose of allowing the court to exercise its discretion whether to strike defendant's serious felony convictions. If the trial court strikes one or more of the priors, it shall resentence defendant. If the trial court declines to strike the priors, it shall reinstate the sentence previously imposed.
Blease, Acting P.J., concurred.
NICHOLSON, J., Concurring and Dissenting.
I concur in the majority's opinion except for part II, as to which I dissent.
The California Supreme Court declared that a trial court has discretion to strike prior сonviction allegations. (People v. Superior Court (Romero) *374 (1996)
This footnote provides for relief on appeal only if the trial court "misunderstood the scope of its discretion...." Accordingly, we may not grant relief unless the record shows such misunderstanding. The Supreme Court did not direct us to speculate concerning whether the trial court misunderstood the scope of its discretiоn or to relieve the appealing defendant of the burden to show error. If no error appears on the record, the defendant may petition for writ of habeas corpus. If such a petition is filed, directs the Supreme Court, the "petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations. [Citation.]" (People v. Superior Court (Romero), supra,
I disagree with the majority's attempt to import procedures invoked for other situations into our Romero review. And I presume the Supreme Court *375 was fully aware that it was preserving the defendant's appellate burden of showing trial court error. Since no such error appears on this record, I would affirm the sentence.
NOTES
Notes
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I and III.
[1] All undesignated statutory references are to the Penal Code.
[2] The circumstances surrounding the defendant's entrance into the motor home formed the basis for carjacking and kidnaрping allegations which were eventually dismissed for insufficiency of evidence.
[3] In People v. White Eagle, supra,
The court in People v. Davis, supra, 50 Cal. App.4th at pages 172-173, concluded: "As we read Romero it does not purport to suspend the normal rules of appellate review. The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.] Applying these rules to the record noted in Romero i.e., that the trial court misunderstood its discretion to strike a prior felony conviction allegation under section 1385(a) requires the appellant affirmatively demonstrate that the trial court misunderstood its sentencing discretion. Where, as here, the record is completely silent, that burden has not been sustained. In such circumstances, the appropriate response by an appellate court, and the response we believe the Supreme Court envisioned in Romero, is to affirm the judgment and relegate the defendant to the remedy of habeas corpus if he can affirmatively demonstrate error."
Finally, in People v. Alvarez, supra, 49 Cal. App.4th at pages 693-695, the trial court denied without comment the defendant's motion to strike his serious felony convictions on separation of powers grounds. On appeal, the court stated: "Here, defendant has failed to point to any part of the record which affirmatively shows the trial court `misunderstood the scope of its discretion to strike prior felony conviction allegations ... pursuant to section 1358(a).' Instead, all we have is a record showing the trial court rejected defendant's separation of powers argument, and nothing more. We decline to automatically presume the trial court erroneously believed it had no discretion to strike defendant's priors in the absence of some affirmative showing that it misunderstood its discretion. To do so would require us to engage in pure speculation, and violate a basic tenet of appellate review." (Id. at p. 695.)
[4] In People v. Rocha, supra,
In People v. Askey, supra,
[5] We appreciate that habeas corpus relief, while cumbersome to the defendant, may offer certain practical advantages to trial courts. Though we are mindful of the consequences of our decisions, administrative convenience cannot be our guiding light.
[] See footnote, ante, page 365.