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
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 Penal Code section 1385 gave trial judges discretionary power to dismiss prior felony conviction allegations in furtherance of justice. We also declared that our holding would be “fully retroactive.” ( 13 Cal.4th at p. 530, fn. 13 .) The only reasonable import of these words was that persons convicted of crimes would be entitled to the benefit of our holding regardless of whether they were sentenced before or after that decision. The question before the court today is whether we meant what we said. The answer the majority gives is no.
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 (U.S. Const., 6th & 14th Amends.; Mempa v. Rhay (1967) 389 U.S. 128, 134-137 [ 88 S.Ct. 254, 256-258 , 19 L.Ed.2d 336 ]; Cal. Const., art. I, § 15; In re Perez (1966) 65 *949 Cal.2d 224, 228-230 [ 53 Cal.Rptr. 414 , 418 P.2d 6 ]; see also Pen. Code, § 1193). The majority does not question these fundamental principles.
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 *950 have remanded for resentencing on silent records. 3 In these decisions, the “waiver" argument has failed because the Courts of Appeal recognized that section 1385 expressly gives only prosecutors and courts acting sua sponte, and not defendants, the right to move to strike prior felony conviction allegations; a defendant cannot waive a right he or she does not possess. Similarly, the “presumption of regularity” argument has failed because the Courts of Appeal candidly recognized that they and their colleagues, before Romero, had overwhelmingly refused to permit trial judges to strike prior felony conviction allegations; while a few trial judges before Romero correctly recognized they did have that power, to presume as a general rule that judges accurately predicted and “regularly” followed an unexpected ruling would make no sense.
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 section 1385 may not have been mentioned at sentencing by either the trial court or defense counsel because all those involved in the proceeding recognized that, in view of the defendant’s background and the circumstances of the current offense, the exercise of such discretion in the defendant’s favor was not a realistic possibility.” (Ibid.)
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 *951 our decision in People v. Superior Court (Romero), supra, 31 Cal.4th 497 , it is overwhelmingly likely that the trial judge erroneously assumed he or she had no discretion to strike priors.
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 *952 denied.” Even a defendant whose petition is not summarily denied will find that an informal response from the People, or a hearing following an order to show cause (maj. opn., ante, at p. 946 & fn. 10), is a poor substitute for a sentencing hearing at which the defendant stands before the judge in person with an advocate by his side. We explained in In re Cortez, supra, 6 Cal.3d 78, 88 , that “an effective presentation of the merits of [such a] petition depends not only on the petitioner’s being present in person but also upon his having the assistance of counsel to fashion facts and arguments into a persuasive appeal to the court’s discretion.” In light of that explanation, I cannot accept the majority’s conclusion that the “interests of the administration of justice” (maj. opn., ante, at pp. 945-946) justify today’s ruling, which will ensure that some defendants spend their lives in prison without ever having appeared with counsel before judges who correctly understood the law and the scope of their sentencing discretion. Can there be an interest in the administration of justice paramount to doing justice? I think not.
For these reasons, I dissent.
Mosk, J., and Kennard, J., concurred.
Justice Chin argues the majority’s refusal to grant relief on appeal in “silent record” cases “is consistent with the outcome the last time a similar situation arose.” (Conc. opn., ante, at p. 947.) However, the decade-old lower court cases on which Justice Chin relies (ibid., ) conflict with the most recent decisions of the Courts of Appeal. (See fn. 3, post.)
E.g., 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. Askey (1996) 49 Cal.App.4th 381, 388 [ 56 Cal.Rptr.2d 782 ]; People v. Alvarez (1996) 49 *950 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.).
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 ].