Calironia Court Cases - Case Law from CA - California Court

	ROMINGER LEGAL
		California Case Law & California Court Opinions - California Law
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This court case was taken from the California Court's web site. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

Filed 1/10/03
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Appellant,

A092782
v.

HAROLD AUSTIN WALLACE,
(Contra Costa County
Super. Ct. No. 000223-8)
Defendant
and
Respondent.

A jury convicted respondent Harold Austin Wallace of being an ex-felon in
possession of a firearm. (See Pen. Code,1 งง 667, subd. (e), 12021, subd. (a)(1).)
The trial court found two prior conviction allegations--both strikes under the "Three
Strikes" law--to be true, but struck the second strike in the interests of justice,
sentencing the defendant as if he had only one strike against him. (See ง 1385.)
Wallace was sentenced to 16 months in state prison for this offense.2 The People

1 All statutory references are to the Penal Code.

2 Wallace was sentenced on two different cases--one based on the new charge and
one based on violation of an earlier-imposed term of probation. He was originally
sentenced to six years for the new offense--three years doubled because of his first
strike--as part of a total state prison term of 14 years eight months for both cases.
(Contra Costa County Super. Ct. Nos. 000223-8, 980121-8.) In September 2001--while
this matter was pending on appeal--the trial court found that this sentence was illegal,
recalled the sentence, and imposed a new sentence of 10 years in state prison for both
cases--of which 16 months were to be served for the charge underlying his present
conviction. As with the earlier sentence for this offense, this term was doubled because
of the single strike against Wallace. The trial court characterized this action as an

1

appeal, contending that the trial court abused its discretion when it struck the prior
conviction that constituted Wallace's second strike. (See ง 995.) We agree.
I. FACTS
A. The First and Second Strikes

In January 1998, appellant Harold Austin Wallace was held to answer on a
charge that he committed murder in April 1996 and did so while using a firearm. He
had also been charged with discharging a firearm at an occupied building in March
1996, but the magistrate refused to hold him to answer on this charge. (See งง 187,
246, 12022.5.) Despite this ruling, an information was filed charging Wallace with
both crimes. Firearm use allegations accompanied each charge. (See งง 187, 246,
12022.5.) Wallace pled not guilty to both charges and in February 1998, he moved
to dismiss the second count (firearm discharge) for insufficiency of evidence. The
motion to dismiss was granted. (See ง 995.)

In May 1998, the information was amended to reinstate the second count and
to add a third count--discharging a firearm at an occupied building or vehicle in
April 1996. (See ง 246.) On the record, Wallace indicated that he understood that
his intended no contest plea would subject him to the Three Strikes law because the
convictions for both offenses would constitute two strikes. (See ง 667, subd. (e).)

Wallace then pled no contest to the charge that he fired a firearm at an
occupied building or vehicle in April 1996 (first strike) and fired a firearm at an
occupied building a month earlier in March 1996 (second strike). His attorney
stipulated that there was a factual basis for the plea. The trial court also concluded
that there was a factual basis for the plea, accepted it, and found Wallace guilty of
both charges. The murder charge and the related enhancement were dismissed on the
People's motion. Wallace was given a five-year term of probation. One condition of
his probation prohibited him from possessing a firearm.

amendment to its August 2000 abstract of judgment. (See People v. Riggs (2001) 86
Cal.App.4th 1126, 1128-1132.)

2

B. The New Charges

In February 2000, Wallace was charged with a December 1999 murder. The
information alleged that he used a firearm in the commission of this offense. It also
alleged three other counts--one charge of criminal street gang activity committed in
December 1999, and two counts of being an ex-felon in possession of a firearm--one
allegedly committed in December 1999 and another alleged to have been committed
in January 2000. Finally, the information alleged that Wallace had two strikes
against him based on the two May 1998 convictions. (See งง 186.22, subd. (a), 187,
667, subd. (e), 1170.12, 12021, subd. (a)(1), 12022.53, subds. (b), (c).) (Contra
Costa County Super. Ct. No. 000223-8.) A motion to revoke his probation based on
the new allegations was also filed.

In April 2000, Wallace's first jury trial ended in a mistrial when the jurors
were unable to reach a verdict on any of the four charges alleged against him.3 A
second jury trial was conducted in May and June 2000.4 The second jury was also
unable to reach a verdict on those charges stemming from the December 1999
incident--murder, being an ex-felon in possession of a firearm, and criminal street
gang activity. Another mistrial was declared on these counts. However, the second
jury convicted Wallace of having been an ex-felon in possession of a firearm in
January 2000.5

3 The jury was split six to six on the murder charge and the related charge of being
an ex-felon in possession of a firearm; it divided five to seven on the criminal street gang
activity charge; and it split ten to two on the second charge of being an ex-felon in
possession of a firearm.

4 Wallace admitted his two prior convictions for purposes of the ex-felon element
in the two charges of being an ex-felon in possession of a firearm.

5 The People rely in their brief on a probation report summary of the facts of the
underlying case. Wallace challenges this reliance in his brief and asks us to strike this
portion of the People's brief or deem it to be inaccurate. We need not take these
requested actions. Instead, we disregard any noncompliance by relying on the 2000 trial
record itself to the extent that this evidence is relevant to the issue presented on appeal.
(See Cal. Rules of Court, rule 14(a)(2)(C), (e)(2)(C).)

3

C. Sentencing and Striking Second Strike

Wallace waived a jury trial on the two strike allegations of his prior
convictions. He moved to dismiss both of these prior conviction allegations. In
August 2000, a court trial6 was conducted on the prior convictions that constituted
the two strikes alleged against Wallace. The trial court found both allegations to be
true, rejecting claims that Wallace was not properly advised by counsel of the effect
of the no contest pleas and that he suffered from ineffective assistance of counsel at
that earlier proceeding.

Then, the trial court considered Wallace's July 2000 motion to strike both
prior convictions in the exercise of its discretion. (See ง 1385.) He asked the trial
court to strike the prior conviction that formed the second strike--the March 1996
act of shooting a firearm at an inhabited dwelling--after considering the fact that the
underlying charge had been dismissed pursuant to section 995 before it was
reinstated and Wallace pled no contest to it. Defense counsel asserted that there was
no factual basis for the underlying conviction. He asked the trial court to consider
this circumstance when ruling on its motion to strike Wallace's second strike before
sentencing. The People countered that Wallace received the benefit of the negotiated
disposition--the dismissal of the murder charge--and could not later decline the
burden of it.

The trial court noted that in the negotiated settlement, Wallace did not agree to
waive his right to argue that one of the strikes should be stricken for sentencing
purposes in the interests of justice. It found that in 1998, a magistrate refused to hold
Wallace over for trial on the March 1996 offense and a trial court granted a motion to
dismiss that charge when the People charged it in the information.7 The trial court

6 The trial of the prior convictions had been bifurcated from the other issues in the
case.

7 The People countered that both the magistrate and the trial court were mistaken
in these rulings.

4

took these facts into account when it exercised its discretion pursuant to section
1385. Over the People's vigorous objection, the trial court concluded that--under
the unique circumstances of this case--the second strike was a conviction in form,
but not in substance, making it appropriate to sentence Wallace as if he fell outside
the spirit of the Three Strikes law insofar as he would be treated as if he only had one
strike, rather than two. Thus, the trial court struck Wallace's second strike stemming
from the March 1996 shooting in the interests of justice. (See ง 1385; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)

Wallace was sentenced to a three-year base term for being an ex-felon in
possession of a firearm, doubled to six years because of his first strike. He was also
sentenced to a consecutive term of eight years eight months for violating probation, for a
total state prison term of 14 years eight months. (Contra Costa County Super. Ct. Nos.
000223-8, 980121-8.) In September 2000, the People dismissed the murder and criminal
street gang activity charges still pending against Wallace.8

A year later, the trial court recalled the sentence imposed for both cases,
concluding that its sentence was illegal. It amended the August 2000 abstract of
judgment and imposed a new sentence of 10 years in state prison, of which a consecutive
term of 16 months was imposed for the June 2000 conviction for being an ex-felon in
possession of a firearm in January 2000. The 16-month term was computed based on
one-third of the midterm of two years (eight months) for this offense and again doubled
because the trial court deemed that Wallace had only a single strike against him. (See
งง 18, 667, subd. (e)(1), 12021, subd. (a)(1).)

8 Although the People argued that a preponderance of evidence showed that
Wallace had committed murder in 1999 and the trial court should consider the fact of the
murder when evaluating whether to grant or deny the motion to strike, the trial court
disagreed. Having presided over the second trial, the trial court stated its opinion that the
People's evidence of murder did not meet this lesser burden of proof. However, the trial
court opined that the evidence that in January 2000, Wallace had been an ex-felon in
possession of a firearm was "very strong."

5

II. DISCUSSION

The People contend that the trial court abused its discretion when it struck
Wallace's second strike prior conviction. The trial court struck Wallace's second
strike in the interests of justice, finding that it was a prior conviction in form rather
than in substance. It was persuaded to this conclusion because the People's
evidentiary showing at the preliminary hearing had been insufficient to withstand a
motion to dismiss. (See ง 995.) On appeal, the People argue that this reason was
irrelevant and thus, the trial court's action was arbitrary, irrational and outside the
spirit of the Three Strikes law.

The prior conviction was based on a charge on which Wallace was not held to
answer. After the People charged this offense in the information and Wallace
obtained a dismissal from the trial court pursuant to section 995, a negotiated
disposition of this charge and several others resulted in the recharging of the offense
and Wallace's no contest plea. A plea of no contest admits every element of the
charged offense, all allegations and factors comprising the charge contained in the
pleading. (People v. Caceres (1997) 52 Cal.App.4th 106, 109 fn. 4.) The People
reason that once he entered his no contest plea, any defect at the preliminary hearing
stage was cured and was rendered irrelevant for purposes of a later trial court's
exercise of discretion whether to strike this prior conviction in furtherance of justice
pursuant to section 1385.

By now, the law is well settled that pursuant to section 1385, a trial court has
discretion to strike a prior conviction that constitutes a strike under the Three Strikes
law. (See People v. Williams (1998) 17 Cal.4th 148, 151-152; People v. Cline (1998)
60 Cal.App.4th 1327, 1337; see also Romero, supra, 13 Cal.4th at pp. 529-530
[allegation of prior conviction].) This exercise of discretion is broad, but not
absolute. It is limited in the sense that it must further the interests of justice. Both
the rights of the defendant and those of the society represented by the People must be
considered when determining whether striking a prior conviction that constitutes a
strike under the Three Strikes law is appropriate. (People v. Williams, supra, 17

6

Cal.4th at pp. 158-161; Romero, supra, 13 Cal.4th at p. 530; People v. Cline, supra,
60 Cal.App.4th at p. 1337.)

The California Supreme Court has set forth the standard to be applied when a
trial court is faced with a motion to dismiss a strike in the interest of justice. In this
circumstance, the trial court must determine whether--in light of the nature and
circumstances of the present felony and the prior convictions, and the particulars of
the defendant's background, character and prospects--the defendant may be deemed
to be outside the spirit of the Three Strikes law, in whole or in part, and hence should
be treated as though he or she had not previously been convicted of one or more
serious and/or violent felonies. (People v. Garcia (1999) 20 Cal.4th 490, 498-499;
People v. Williams, supra, 17 Cal.4th at p. 161.) The decision to strike a prior
conviction is an individualized one, based on the particular aspects of the current
offense for which the defendant has been convicted and on the defendant's own
history and personal circumstances. However, the trial court must also pay heed to
the Three Strikes law within which it exercises its authority. Its decision to strike a
prior conviction creates an exception to this sentencing scheme which allows the
sentencing court, for articulable reasons that can withstand scrutiny for an abuse of
discretion, to conclude that this defendant should be treated as if he or she actually
fell outside the Three Strikes law. (People v. Cluff (2001) 87 Cal.App.4th 991, 1004;
People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)

A decision to strike a prior conviction that constitutes a strike is reviewed for
an abuse of discretion. (People v. Williams, supra, 17 Cal.4th at pp. 152, 158-159,
162; see Romero, supra, 13 Cal.4th at pp. 531-532.) That standard of review is
deferential to the trial court, but not empty. We consider whether the decision of the
trial court falls outside the bounds of reason under the applicable law and the relevant
facts. (People v. Williams, supra, 17 Cal.4th at p. 162; see People v. Myers (1999)
69 Cal.App.4th 305, 309.) Examples of an abuse of discretion include dismissal for
judicial convenience; to reduce court congestion; solely because the defendant pled
guilty; or because the trial court has a personal antipathy to the effect that the Three

7

Strikes law would have on a defendant while ignoring the defendant's background,
the nature of the present offense or other individualized considerations. (People v.
Williams, supra, 17 Cal.4th at p. 159; see Romero, supra, 13 Cal.4th at pp. 531-532;
People v. Cline, supra, 60 Cal.App.4th at p. 1337.)

On appeal, the People argue that because the no contest plea admitted all
elements of the prior offense that constituted the second strike, the "sufficiency" of
the evidence adduced at the preliminary hearing was irrelevant as a factor supporting
the exercise of discretion to strike the strike. The People are correct. Once Wallace
entered his no contest plea, the elements of the offense and the sufficiency of the
evidence supporting that offense were established. (In re Troy Z. (1992) 3 Cal.4th
1170, 1181 [no contest plea admits sufficiency of evidence].) Reliance by the trial
court on the preplea rulings of the magistrate and the superior court concerning the
sufficiency of the evidence presented at the preliminary hearing was error and
constituted an abuse of discretion. Although there are many factors that may be
considered by the trial court in the exercise of its broad discretion to strike a strike,
this was not one of them.

Because the trial court placed primary reliance upon this improper factor, the
order striking the strike must be reversed.
III. DISPOSITION

The order striking Wallace's second strike is reversed. The cause is remanded
to the trial court for further proceedings consistent with this opinion.

_________________________
Reardon,
J.

We concur:
_________________________
Kay, P.J.
_________________________
Rivera, J.

8

Trial court:

Contra Costa County Superior Court

Trial judge:

Hon. Peter L. Spinetta

Counsel for appellant:

Gary T. Yancey

District Attorney
Doug
MacMaster

Deputy District Attorney

Counsel for respondent:
William D. Farber

A092782

9