People v. Dent (38 Cal. App. 4th 1726, 1995)

Opinion

MASTERSON, J.

Defendant Daniel Dent entered pleas of no contest to two “wobbler” offenses which the trial court found to be misdemeanors under Penal Code section 17, subdivision (b)(1). The People appeal from the ensuing judgment, contending that the “three strikes law” abrogated the trial court’s discretion to declare wobbler offenses to be misdemeanors, and alternatively that the trial court abused its discretion in imposing a misdemeanor sentence on defendant. We follow the lead of three recent Court of Appeal decisions in holding that the three strikes law did not affect the trial court’s discretion under section 17, subdivision (b)(1). (People v. Vessell (1995) 36 Cal.App.4th 285 [42 Cal.Rptr.2d 241]; People v. Trausch (1995) 36 Cal.App.4th 1239 [42 Cal.Rptr.2d 836]; People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347 [45 Cal.Rptr.2d 107].) However, we part company with Trausch on the issue of whether a trial court abuses its discretion where, as here, it selects a misdemeanor sentence for a wobbler offense solely to avoid the effects of the three strikes law. We find that such abuse occurred in this case, and remand for a proper exercise of sentencing discretion.

Background

On May 13, 1994, defendant was caught shoplifting three bottles of liquor from a market in Downey. Based on this incident, he was charged with one count of second degree commercial burglary and one count of petty theft with a prior theft-related conviction, for burglary, which he had suffered on September 28, 1992. (§§ 459, 666.) The information further alleged that defendant had served prior prison terms for the 1992 burglary conviction, a 1976 robbery conviction, a 1979 robbery conviction, a 1979 grand theft conviction, and a 1990 grand theft conviction. (§ 667.5, subd. (b).) It also alleged that defendant had suffered three prior felony convictions, the 1992 burglary, the 1976 robbery, and the 1979 robbery, within the meaning of the three strikes law. (§ 667, subds. (b)-(i).)

On September 8, 1994, defendant entered pleas of no contest to both charged offenses and admitted the special allegations. On September 26, the trial court sentenced him as follows: “[W]ith the laws that exist in this state today, it’s really clear if you have a felony and you have . . . two strike priors . . . that a court must sentence you to a sentence of 25-years-to-life, and at least that. It could even be more than that. [