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California Supreme Court:
Open-Ended Remand Is Usual Remedy After Axing of Strike
Opinion Adopts View That Judge Who Abused Discretion in Eliminating Allegation Should Generally Be Given Second Shot After Reversal; Guerrero Dissents, Saying That Reinstatement Is Indisputably Due
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that the appropriate response to remedy a trial court’s abuse of discretion in granting a defense motion to dismiss an allegation that the defendant has suffered a qualifying offense under California’s “Three Strikes” law is an open-ended remand for reconsideration of the request and not to order the automatic reinstatement of the enhancement.
Yesterday’s decision, by Justice Leondra Kruger and joined in by Justices Carol A. Corrigan, Goodwin H. Liu, Joshua P. Groban, Martin J. Jenkins, and Kelli Evans, reversed a judgment by Div. Two of the First District Court of Appeal, declaring that the panel erred in directing the trial judge to “reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes law.”
Kruger wrote:
“We conclude that rather than dictating the sentence to be imposed on remand, the Court of Appeal should have afforded the trial court its usual discretion to rule on the…motion, this time based on a correct understanding of the law. We reverse the judgment of the Court of Appeal and remand with instructions to return the case for resentencing in accordance with this opinion.”
Chief Justice Patricia Guerrero dissented, saying that the majority misconstrued applicable precedent and arguing that, in the present case, Div. One was justified in ordering the reinstitution of the allegation because “nothing that defense counsel could have said would have changed” the serious nature of the defendant’s current offense or significant criminal history.
Home Invasion Robbery
The question arose after Yacob Dain was found guilty by a jury of home invasion robbery, kidnapping, assault with a firearm, among other crimes. Following the trial, Sonoma Superior Court Judge Bradford DeMeo found that Dain suffered a 2006 prior conviction for felony active participation in a criminal street gang, in violation of Penal Code §186.22(a), and that the offense qualifies as a strike.
Under the Three-Strikes scheme found at Penal Code §667, the trial court was obligated to sentence the defendant to “twice the term otherwise provided as punishment for the current felony conviction.” However, Dain sought to have his prior strike dismissed by filing a so-called Romero motion.
In 1998, the California Supreme Court declared, in People v. Williams, that such relief may be appropriate if “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions” and the “particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part.”
Applying those principles, DeMeo granted the defendant’s motion, saying that “since June of 2019,…our California legislature has made it very clear things are changing, the law is changing” and that “in my reflection of what the spirit of the law is,…I think the [L]egislature has been very clear that things are different, remoteness does count, and I think under the current case law it’s appropriate to strike.” He rejected the prosecutor’s assertion that any changes to the “spirit” of sentencing laws were irrelevant because none had altered the Three Strikes law, and commented that his decision was supported by other unspecified factors. DeMeo dismissed the 2006 strike and sentenced Dain to eight years in prison.
Reversal of Dismissal
On appeal, Div. One of the First District Court of Appeal reversed, finding insufficient the trial court’s reliance on the remoteness of the 2006 strike, given the absence of evidence that Dain had “reformed his ways” since that conviction, and faulting the trial court with relying on amendments to sentencing schemes unrelated to the Three Strikes law.
After Dain petitioned for review, the California Supreme Court granted the request only as to the following question:
“Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes law?”
Answering the question in the affirmative, Kruger noted a divide in that “[s]ome Courts of Appeal have ordered open-ended remands to permit the trial court the full scope of its discretion on remand” while others “have issued orders much like the order the Court of Appeal issued in this case.”
However, she said looked to the Williams case for guidance, saying that it “suggests an answer to the remedial question we confront here.”
Williams Case
She wrote:
“Although Williams did not purport to provide comprehensive guidance on the subject of appellate remedies, what Williams said about the appropriate remedy in that case suggests an answer to the remedial question we confront here: When a trial court has abused its discretion in granting a Romero motion, the ordinary remedy is to remand for resentencing, at which time the trial court may again exercise its sentencing discretion, this time based on a proper understanding of the governing law.”
The justice added:
“It is true, as the District Attorney and our dissenting colleague emphasize, that Williams dealt with a situation in which the trial court’s error in adjudicating the Romero motion required unwinding a guilty plea entered in reliance on the trial court’s willingness to strike his prior….But Williams is [still] instructive….After all, in Williams we concluded that the trial court’s dismissal order was not justified based on what we could glean from the record before us; based on that record, we opined that the defendant ‘cannot be deemed outside the spirit of the Three Strikes law in any part.’…Had we thought this reason enough to foreclose further consideration of the issue on remand, we could have issued instructions to allow the defendant to withdraw his plea while making clear that the trial court could not dismiss the strike on resentencing.”
Pointing out that open-ended remands for resentencing are “the ordinary remedy” in “other contexts,” she opined that this general rule “counsel[s] a similar approach when appellate courts find errors in the manner in which a trial court has exercised its discretion to dismiss prior strikes.”
Proper Remedy
Kruger declared:
“In short, whether a case was resolved by guilty plea or not, Williams suggests—and we now confirm—that when the trial court is found to have abused its discretion in granting a Romero motion, the proper remedy is ordinarily a remand that allows for further consideration of the issue. Any resulting ruling will, of course, be likewise subject to appellate review for abuse of discretion.”
In a footnote, the jurist said:
“We do not suggest that a Court of Appeal may never issue a more directive order….To take one example, if a trial court makes repeated mistakes in applying the law, the Court of Appeal is not bound to give the court endless opportunities to try again.”
In the present case, she pointed out that DeMeo noted that his decision was based on “some other factors” besides the Legislature’s purported changing of the “spirit” of governing sentencing laws, remarking:
“The District Attorney and the dissent both suggest that we should ignore the limitations in the existing record because no further elaboration of any favorable circumstances, or citation of additional reasons, could possibly overcome the weight of Dain’s extensive criminal history…..We reject the suggestion.”
Guerrero’s View
Guerrero wrote:
“I disagree with the majority that our decision in…Williams…‘suggests an answer to the remedial question we confront here.’…Our decision in Williams supports the conclusion that there is no such infringement where, as a matter of law, the record demonstrates that defendant ‘cannot be deemed outside the spirit of the Three Strikes law in any part, and hence may not be treated as though he had not previously been convicted of those serious and/or violent felonies.’ ”
Continuing, she said:
“As in Williams, there was nothing in the record before the trial court or the Court of Appeal in this case about ‘the nature and circumstances of [defendant’s] present felony’ or ‘the particulars of his background, character, and prospects’ that would permit any reasonable court to conclude defendant was ‘outside the spirit of the Three Strikes law.’ ”
Noting that “the procedural context in this case is materially different” from Williams, she argued:
“[A]s the majority—at least nominally—recognizes, an open-ended remand is not invariably mandated….In my view, the Court of Appeal permissibly directed reinstatement of defendant’s strike ‘under the circumstances’ of this case.”
The case is People v. Dain, 2025 S.O.S. 2214.
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