Filed 3/19/13 P. v. Sotelo CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F062642
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF227014A)
                   v.

ISAAC SEBASTIAN SOTELO,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Cheryl Anderson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
       A jury convicted appellant, Isaac Sebastian Sotelo, of second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c))1 and resisting, delaying or obstructing a peace officer (§
148, subd. (a)(1)), and in a separate proceeding, the court found true allegations that
appellant had suffered a prior conviction that qualified as both a prior serious felony
conviction under section 667, subdivision (a) (section 667(a)) and as a “strike,”2 and that
he had served three separate prison terms for prior felony convictions within the meaning
of section 667.5, subdivision (b) (section 667.5(b)). The court imposed a prison term of
12 years, consisting of the following: the three-year midterm on the robbery conviction,
doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) for
a total of six years; five years on the prior serious felony enhancement (§ 667(a)) and one
year on one of the prior prison term enhancements (§ 667.5(b)). The court neither struck,
nor imposed sentence on, the other two section 667.5(b) enhancements.
       Prior to trial, appellant made a so-called Pitchess motion (Pitchess v. Superior
Court (1974) 11 Cal.3d 531) for discovery of personnel records of two police officers
involved in appellant‟s arrest. At an in camera hearing on the motion, the court, after
reviewing documents produced at the hearing, ordered disclosure of some information.
       Appellant has asked this court to review the sealed transcript of the in camera
hearing and materials produced by the People at that hearing “to determine if the trial
court followed proper Pitchess procedures and disclosed all relevant materials contained
in the personnel records.” This is the sole issue raised by appellant. As we explain
below, we find no error in the trial court‟s ruling on the Pitchess motion. However, as we
also explain below, we have concluded the court committed sentencing error. We vacate
the sentence and remand for resentencing.

1      Except as otherwise indicated, all statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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                                       DISCUSSION
Pitchess Motion
       The People effectively concede that review of the court‟s Pitchess motion ruling
sought by appellant is proper. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have
conducted an independent review of the transcript of the in camera hearing and the
records produced at that hearing. The records produced, according to the attorney
appearing at the hearing with the custodian of records for the Visalia Police Department,
constituted “all of the records that the Visalia Police Department has concerning [the
officers named in appellant‟s motion].” Based on our review, we have concluded there
was no abuse of discretion in the court‟s ordered disclosure.
Sentencing Error
       The court found true, and imposed sentence on, one prior serious felony
enhancement (§ 667(a)) allegation. The court also found true three prior prison term
enhancement allegations (§ 667.5(b)), one of which was based on the same conviction
upon which the prior serious felony enhancement was based, i.e., appellant‟s 1994
conviction in Tulare County Superior Court case No. CR19480 (case No. CR19480).
However, the court imposed sentence on only one of the prior prison term enhancements
and did not strike either of the other two.
       It is with respect to those other two prior prison term enhancements that we find
the court erred. As we explain below, the court erred in: (1) failing to strike one of them,
viz., the section 667.5(b) enhancement based on the same prior conviction upon which
the five-year prior serious felony enhancement was based, and (2) failing to either strike
or impose the other one. Each of these two enhancements requires a different analysis.
Accordingly, we address them in turn. We refer to the prior prison term enhancement
based on the conviction in case No. CR19480 as the CR19480 section 667.5(b)
enhancement, and we refer to the other prior prison term enhancement which the court
neither struck nor imposed as the remaining section 667.5(b) enhancement.


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CR19480 Section 667.5(b) Enhancement
        In a supplemental brief, appellant argues that the CR19480 section 667.5(b)
enhancement must be stricken because it was based on the same prior conviction upon
which the section 667(a) prior serious felony enhancement was based. We agree.3
        Where a prior prison term enhancement and a prior serious felony enhancement
are based on the same conviction, sentence may be imposed on only the greater of the
two enhancements, i.e., the five-year section 667(a) enhancement. (People v. Jones
(1993) 5 Cal.4th 1142, 1150 (Jones).) Therefore, the prior prison term enhancement
based on the prior conviction in case No. CR19480 must be stricken. (Ibid.)
        Appellant argues that the proper disposition is for this court to simply strike the
CR19480 section 667.5(b) enhancement. However, in Jones, our Supreme Court
remanded the matter to the trial court with directions to strike the prior prison term
enhancement that was based on the same conviction upon which a section 667(a)
enhancement was based. (Jones, supra, 5 Cal.4th at p. 1153). Based on Jones, and
because, as we explain below, the matter must be remanded to allow the trial court to
address the remaining section 667.5(b) enhancement, rather than simply striking the
CR19480 section 667.5(b) enhancement, we will remand the matter with directions to the
trial court to strike it.
Remaining Section 667.5(b) Enhancement
        When a trial court finds a prior prison term allegation to be true, the trial court
must either impose the additional one-year term or strike the allegation. (People v.
Langston (2004) 33 Cal.4th 1237, 1241 [prior prison term enhancement is “mandatory
unless stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“the court must

3      We notified the parties pursuant to Government Code section 68081 that we
proposed, should we otherwise affirm, to remand the matter to the trial court to allow the
court to strike the two section 667.5(b) enhancements, which it neither dismissed nor
imposed sentence on. Appellant responded to our invitation to submit supplemental
briefing. The People did not.


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either impose the prior prison enhancements or strike them”].) “The failure to impose or
strike an enhancement is a legally unauthorized sentence subject to correction for the first
time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
       Section 1385 authorizes a trial court to strike an enhancement, in the exercise of
its discretion, “in furtherance of justice.” (§ 1385, subd. (a); People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 504 [California Supreme Court has “held that the power
to dismiss an action includes the lesser power to strike factual allegations relevant to
sentencing”]; People v. Bonnetta (2009) 46 Cal.4th 143, 145 (Bonnetta) [“discretion ...
conferred [by section 1385] on the trial courts includes the discretion to dismiss or strike
an enhancement in the furtherance of justice”].) “The reasons for the dismissal must be
set forth in an order entered upon the minutes.” (§ 1385, subd. (a).)
       It appears here the trial court intended to strike both the CR19480 section 667.5(b)
enhancement and the remaining section 667.5(b) enhancement under section 1385.4
However, the court did not state at sentencing that it was striking any enhancements, and
did not comply with the requirement of section 1385 that the reasons for striking
enhancements be set forth in the minutes. The court‟s error—the ineffective striking of
the remaining section 667.5(b) enhancement—cannot be deemed harmless. (Bonnetta,
supra, 46 Cal.4th at pp. 151-152.)



4       At the sentencing hearing, the prosecutor argued for the imposition of a term of 18
years, including one year on each of the prior prison term enhancements. In imposing
sentence the court noted, “I have the discretion to sentence [appellant] independently for
an additional year to [sic] all of the prior prison enhancements. And whether we get to
[the sentence urged by the prosecutor], I believe that given some notion of
proportionality, the crime that was committed[,] Mr. Sotelo‟s background, and, again, the
time between his previous strike [that] such a sentence would be too harsh, and I am not
prepared to do that.” The court made no other mention of the prior prison term
enhancements, except to say, in sentencing appellant, that the 12-year term imposed
included “an additional and consecutive one year pursuant to Penal Code section 667.5(b)
....”


                                              5
       The question that remains is: Can we carry out the trial court‟s apparent intention
by simply striking the remaining section 667.5(b) enhancement, or by directing the trial
court to do so? Bonnetta, supra, 46 Cal.4th 14 provides the answer. As we now explain,
under Bonnetta, we must remand the matter to allow the trial court to either strike the
remaining section 667.5(b) enhancement in the exercise of its discretion under section
1385, or impose it.
       In Bonnetta, the trial court, in sentencing the defendant, struck several
enhancements and stated its reasons for doing so. (Bonnetta, supra, 46 Cal.4th at p. 148.)
The trial court‟s decision was reduced to an order entered upon the minutes, but the
written order did not set forth any of the court‟s reasons for striking the enhancements.
(Ibid.) Our Supreme Court held the striking of the enhancements was ineffective,
because of the absence of compliance with the requirement of section 1385 that the
reasons for the dismissal be set forth in the court‟s minutes. The high court ordered
remand to the trial court, refusing to “adopt[] ... a new rule allowing a reviewing court to
examine the transcripts of the oral proceedings for a trial court‟s reasons for its decision
to dismiss, so that a court‟s failure to comply with the letter of Penal Code section 1385
might be deemed harmless error ....” (Bonnetta, supra, at p. 150.) The court stated:
“Having concluded Penal Code section 1385 states a mandatory requirement, we have no
reason to consider whether a violation of its provisions might be deemed harmless.
Nonetheless, ... we find it useful again to note that the purpose of the requirement is to
allow review of the trial court‟s reasons for ordering dismissal. „[W]e are dealing not
with a pure question of law but with the exercise of a trial court‟s discretion. It would be
incongruous for an appellate court, reviewing such order, to rely on reasons not cited by
the trial court. Otherwise, we might uphold a discretionary order on grounds never
considered by, or, worse yet, rejected by the trial court. And, if the appellate court is free
to scour the record for other reasons to support the dismissal, or accept reasons suggested




                                              6
by the defendant, there was no reason for the Legislature to require that the lower court
record the basis for the dismissal in the first instance.‟” (Id. at pp. 151-152.)
       Further, the court stated: “[A]s the trial court‟s order of dismissal is ineffective,
the matter must be remanded at least for the purpose of allowing the trial court to correct
the defect by setting forth its reasons in a written order entered upon the minutes.
Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as
on reflection it might determine its reasoning was flawed or incomplete. Judicial
economy is furthered by allowing the trial court to correct what, upon reconsideration and
reflection, it perceives to have been an unwarranted dismissal, or to consider if a
dismissal should be ordered for some new or different reason. In such cases, the court
must also have the power to take action such as reconvening the sentencing hearing or
allowing a defendant to withdraw a plea entered on the understanding a count or an
enhancement would be dismissed.” (Bonnetta, supra, 46 Cal.4th at p. 153.)
       The reasoning of Bonnetta applies here. Under Bonnetta, notwithstanding the trial
court‟s apparent intention to strike the remaining section 667.5(b) enhancement, we may
not carry out that intention by striking this enhancement or directing the trial court to do
so. Rather, we must remand the matter to the trial court with directions that the trial court
either impose sentence on the remaining section 667.5(b) enhancement or strike it in the
exercise of its discretion under, and in compliance with, section 1385.
                                      DISPOSITION
       The sentence is vacated and the matter is remanded for resentencing. On
resentencing, the trial court is directed to strike the prior prison term enhancement based
on appellant‟s conviction in Tulare County Superior Court case No. CR19480. The trial
court is further directed to either strike or impose sentence on the other prior prison term
enhancement on which the court did not impose sentence at the initial sentencing. If at
resentencing the trial court strikes this latter enhancement, the court shall do so in
compliance with Penal Code section 1385. In all other respects the judgment is affirmed.


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