Metropolitan News-Enterprise


Monday, April 26, 2004


Page 1


Court of Appeal Says Judge Should Have Stricken One Of Two Prior Convictions Arising From Same Act


By DAVID WATSON, Staff Writer


It was an abuse of discretion for a trial judge to decline to strike one of two prior “three strikes” convictions where both arose from the same act, this district’s Court of Appeal ruled Friday.

Retired Los Angeles Superior Court Judge Robert C. Gustaveson, sitting on assignment, erred in sentencing Jose Ernesto Burgos to two terms of 25 years to life after a jury convicted him of robbery and assault, a Div. Two panel said.

The appellate court had previously reversed one of two five-year enhancements Gustaveson imposed for conviction of two prior serious felonies, ruling that since both of the earlier convictions arose from the same act they could not support separate enhancements under Penal Code Sec. 667(a). Burgos had previously been convicted of carjacking and attempted robbery, but the appeals court ruled the two offenses were not brought and tried separately within the meaning of the statute.

In the earlier appeal, the panel did not decide whether Gustaveson was wrong to rule that both convictions could be counted as separate strikes, saying the judge should reconsider that issue on remand. When Burgos appeared before him for resentencing, Gustaveson dropped one of the enhancements but rejected the defendant’s argument that one of the prior convictions should be stricken under Penal Code Sec. 1385, preventing his latest convictions from counting as a third strike.

Justice Judith M. Ashmann-Gerst, writing for the panel, pointed out that Burgos’ first appeal had raised the three-strikes issue in the context of a claim his lawyer rendered ineffective assistance by failing to ask Gustaveson to strike one of the priors. The appeals court ruled any ineffectiveness was harmless, since Gustaveson had addressed the issue and exercised his discretion, and would have a chance to do so again on remand.

“While it might have served the cause of judicial economy had we addressed this issue directly when it was raised by means of an ineffective assistance of counsel claim in appellant’s earlier appeal, we did not, but, rather, we simply addressed it under the applicable law governing ineffective assistance claims,” Ashmann-Gerst observed. “We now hold that the failure to strike one of the two priors convictions that arose from a single act constitutes an abuse of discretion.”

The question, she noted, was one left unresolved by the state Supreme Court in People v. Benson (1998) 18 Cal.4th 24. But in a footnote in that case the high court suggested there might be “some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.”

That footnote “strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors,” Ashmann-Gerst declared.

The justice noted that there is an “express statutory preclusion” barring a court from imposing sentences for both carjacking and robbery where both charges are based on the same act.

  “While this provision does not refer to the use of the convictions as priors in a later prosecution such as the one before us,” Ashmann-Gerst explained, “it reinforces our belief that infliction of punishment in this case based on both convictions constitutes an abuse of discretion.”

She pointed out that Burgos’ prior criminal history, aside from the attempted carjacking, consisted of several misdemeanors and a felony conviction for sale of a substance in lieu of a controlled substance. It was while in a holding cell at the Citrus court in West Covina awaiting an appearance in connection with the controlled substance violation that he assaulted another detainee, taking the man’s shoes and leading to the robbery and assault charges, the justice observed.

“While the current offenses were not merely petty theft or drug possession offenses, neither were they, under the circumstances, the worst of crimes,” she declared.

Even without counting two prior strikes, Ashmann-Gerst said, Burgos could be sentenced “as a second-strike defendant to a term as long as 20 years, comprised of the upper term for second degree robbery and a consecutive term for assault, both doubled under the three strikes law, with a great bodily injury enhancement and a section 667, subdivision (a) enhancement.”

She added:

“We conclude that, in view of the particular offenses that constituted the two prior strike convictions in this case, it was an abuse of discretion to fail to strike one of those convictions in furtherance of justice....”

Pasadena attorney Jeralyn B. Keller, under appointment by the Court of Appeal, represented Burgos on appeal. Deputy Attorney General Kenneth J. Kao represented the prosecution.



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