rejecting plaintiff’s argument that a "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”
How later courts described this case
- rejecting plaintiff’s argument that a "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”
- physician must receive fair hearing before HMO can remove physician from provider network, even with termination without cause provision in provider contract, where terminating party controls "substantial economic interests" concerning the physician
Written by the judges who cited it.
The opinion
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.
*948 I agree with the court in People v. Davis (1996) 50 Cal.App.4th 168, 172 [ 57 Cal.Rptr.2d 659 ], that Romero does not “suspend the normal rules of appellate review.” Error is not presumed but must be demonstrated. “Applying these rules to the error noted in Romero—i.e., that the trial court misunderstood its discretion to strike a prior felony conviction allegation under [Penal Code] section 1385(a)—requires the appellant to 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. . . is to affirm the judgment and relegate the defendant to the remedy of habeas corpus if he can affirmatively demonstrate error.” (People v. Davis, supra, 50 Cal.App.4th at p. 172 .)
Baxter, J., concurred.