People v. Dorsey CA1/3

Filed 10/29/15 P. v. Dorsey CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A142289 v. RODNEY L. DORSEY, (City & County of San Francisco Super. Ct. No. 215442) Defendant and Appellant.

Defendant Rodney L. Dorsey pleaded guilty in 2011 to failing to register as a sex offender and admitted a prior conviction under California’s Three Strikes law. The court suspended imposition of sentence and placed defendant on probation. Upon revoking his probation in 2014, the trial court sentenced defendant to serve four years in state prison. On appeal, defendant argues that the trial court erred because it was unaware it had discretion to strike his prior conviction before imposing sentence. We agree with defendant and shall remand the matter to allow the trial court to exercise its sentencing discretion. FACTUAL AND PROCEDURAL BACKGROUND In May 2011, the District Attorney for the City and County of San Francisco filed a three-count information charging defendant with failing to register as a sex offender upon release from confinement (Pen. Code,1 § 290.015, subd. (a)), failing to update his sex offender registration annually (§ 290.012, subd. (a)), and failing to register as a sex

1 All further statutory references are to the Penal Code.

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offender after an address change (§ 290, subd. (b)). The district attorney further alleged that defendant had suffered three prior strikes under California’s Three Strikes law (§§ 667, subds. (d)–(e), 1170.12, subds. (b)–(c)) and five prison priors under section 667.5, subdivision (b). In October 2011, defendant pleaded guilty to failing to register as a sex offender after an address change. (§ 290, subd. (b).) He also admitted one prior conviction under California’s Three Strikes law. (§ 667, subd. (d).) In exchange for the plea, the trial court dismissed the remaining counts and enhancements upon the motion of the prosecutor. In August 2013, the trial court suspended imposition of sentence and placed defendant on probation for three years. In January 2014, the district attorney moved to revoke defendant’s probation. The revocation petition was based in part on an allegation that defendant sexually assaulted a woman while in a homeless encampment. The court conducted a probation revocation hearing in May and June 2014. The prosecution presented evidence that defendant touched the female victim’s genital area and restrained her while she was sleeping in a homeless encampment. At one point, defendant choked the victim, who briefly lost consciousness. Defendant told an officer that he had been pursuing the victim as a girlfriend but that she indicated she did not want a relationship with him. Defendant denied sexually assaulting the victim. He told an officer that she falsely accused him because he had refused to give her heroin. The trial court revoked defendant’s probation after finding that defendant had violated its terms. At the conclusion of the probation revocation proceeding, the trial court stated that its task was to “decide whether to sentence [defendant] to 16 months or two years or three years in state prison” for the offense of failing to register as a sex offender, and whether to double that sentence under the Three Strikes law. Before proceeding, the court asked the question: “Does the Court have any jurisdiction to essentially not impose the strike or is that mandatory? I have not researched the issue. I’m going to give you an opportunity to research that issue if you want to come back.” The prosecutor stated that the court could not dismiss the strike because “it is a 667(a).”