People v. Alexander

California Court of Appeal Jul 30, 1992 No. B061949Published

Before: Turner

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Holding. The trial court abused its discretion by striking sentencing enhancements based on factors that did not constitute legally cognizable circumstances in mitigation. A plea entered on the last day of the statutory trailing period does not qualify as an early stage of the criminal process, and waiver of a jury trial is not a valid mitigating factor.

Issues

Did the trial court abuse its discretion by striking sentencing enhancements based on the defendant's plea and waiver of jury trial?
Does a plea entered on the final day of the statutory trailing period constitute an 'early stage of the criminal process' under Rule 423(b)(3)?
Was the argument regarding Penal Code section 1385, subdivision (a) waived by failure to raise it in the trial court?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“We agree with the prosecution that the trial court abused its discretion in striking the two 1-year enhancements pursuant to Penal Code section 667.5, subdivision (b) and the three-year enhancement pursuant to Health and Safety Code section 11370.2”

“Defendant’s plea on January 30, 1990, 131 days after his arrest, on the final day of the trailing period specified in Penal Code section 1382, subdivision (a)(2)(B) was not at an “early stage of the criminal process” as a matter of law.”

Opinion

TURNER, P. J.

The People appeal from a judgment after the trial court struck two enhancements pursuant to Penal Code section 667.5, subdivision (b), and another enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), purportedly under the authority of Penal Code section 1170.1, subdivision (h). Defendant was arrested on September 22, 1989, after selling cocaine to an undercover narcotics investigator. Arraigned in superior court on October 17, 1989, defendant’s cause was not called for trial until January 17, 1990, and the case trailed until January 30, 1990, which was the last day upon which the matter could be tried without a dismissal being entered pursuant to Penal Code section 1382, subdivision (a)(2)(B). On January 30, 1990, over the objection of the deputy district attorney, the court indicated it allowed defendant to plead guilty to the charge of sale of cocaine in violation of Health and Safety Code section 11352, subdivision (a) and receive a term of four years. Although defendant admitted he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), and had been previously convicted of sale of cocaine within the meaning of Health and Safety Code section 11370.2, subdivision (a), the trial judge purported, over the prosecutor’s objection to “stay” the five years worth of enhancements.

The People appealed the order “staying” the prior prison terms and the drug conviction enhancements. On April 15, 1991, in an unpublished opinion, this court reversed the order “staying” the enhancements under the authority of

People

Cattaneo

(1990) 217 Cal.App.3d 1577, 1589 [266 Cal.Rptr. 710],

People

Ruby

(1988) 204 Cal.App.3d 462, 465-466 [251 Cal.Rptr. 349], and

People

Eberhardt

(1986) 186 Cal.App.3d 1112, 1121-1123 [231 Cal.Rptr. 387] and remanded the case “for resentencing where the enhancements are to be imposed or stricken in compliance with Penal Code section 1170,1, subdivision (h) . . . .”

People v. Alexander

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TURNER, P. J.

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