Supreme Court of California Justia
Docket No. S113321
People v. Wallace

Filed 7/26/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S113321
v.
Ct.App. 1/4 No. A092782
HAROLD AUSTIN WALLACE,
County of Contra Costa
Super. Ct. No. 000223-8
Defendant and Respondent.

In the present case, the trial court struck a prior-conviction allegation that
was based upon defendant’s negotiated plea of no contest to a charge of willful
discharge of a firearm into an inhabited dwelling in violation of Penal Code
1
section 246. Despite defendant’s entry of this plea to the earlier charge, his
resulting admission of the factual basis for the plea, and his express
acknowledgement that the plea would result in a strike for the purpose of the
“Three Strikes” law, the trial court in the present case concluded that the prior-
conviction allegation should be stricken pursuant to section 1385, primarily
because the magistrate after conducting a preliminary hearing had held that there
was insufficient evidence to hold defendant to answer on that charge. We
conclude that the trial court abused its discretion, because it based its decision to
strike the prior-conviction allegation on a factor that is extraneous to the Three
1
Statutory references are to the Penal Code unless otherwise indicated.
1


Strikes law. As our conclusion is consistent with the determination of the Court of
Appeal below, we affirm the judgment of that court.
I
Defendant was charged by information in four counts. Three of the counts
arose from a single incident in December 1999: murder (§§ 187, 189), active
participation in a criminal street gang (§ 186.22, subd. (a)), and being a felon in
possession of a firearm (§ 12021, subd. (a)(1)). The fourth count, which charged
defendant with being a felon in possession of a firearm, arose out of a January
2000 incident. In that incident, officers responding to a domestic violence call
were told by defendant’s girlfriend that he had a gun. Defendant fled in a pickup
truck and threw a handgun out of the window during the ensuing police chase.
The information also alleged defendant had two prior convictions that constituted
serious or violent felonies under the Three Strikes law. (§§ 667, subd. (d),
1170.12, subd. (b).)
After a jury was unable to reach a verdict, the trial court declared a mistrial.
A second jury convicted defendant of the charge of being a felon in possession of
a firearm, based upon the January 2000 incident, but deadlocked on the remaining
counts. A mistrial was declared as to the latter charges. Defendant waived jury
trial on the truth of the prior-conviction allegations and requested that the trial
court exercise its discretion under section 1385 to strike one of his two prior-strike
convictions in the event the trial court found the allegations to be true.
Both of the two prior convictions were for willful discharge of a firearm
into an occupied vehicle or building. (§ 246.) The first was based upon an
incident that occurred in March 1996. The second was based upon an incident that
occurred in April 1996 and originally was charged as a murder. Defendant was 19
years of age at the time of each incident. After a preliminary hearing at which
evidence was presented regarding both of these incidents, the magistrate held
2
defendant to answer on the murder count but not on the count of willful discharge
of a firearm, finding there was not sufficient cause to believe defendant guilty.
(See § 871.) The prosecutor nevertheless charged both counts in a subsequent
information. (See § 739.) Defendant pleaded not guilty and succeeded in
persuading the trial court to set aside the willful-discharge-of-a-firearm count.
(See § 995, subd. (a)(2).) Pursuant to a plea negotiation, the information was
amended to reinstate the latter count and to add an additional count of willful
discharge of a firearm with respect to the April 1996 incident that originally was
charged as a murder.
Defendant pleaded no contest to these two counts of willful discharge of a
firearm in exchange for dismissal of the murder charge. Defendant, by initialing
and signing a change-of-plea form, indicated he understood and waived his
constitutional rights to a speedy trial, to confront witnesses, to remain silent, and
to subpoena witnesses, acknowledged that his plea was not the result of a promise
or threat, and denied that he was under the influence of drugs or alcohol.
Defendant also stipulated to a factual basis for his plea, initialing the portion of the
change-of-plea form indicating that he had discussed with defense counsel “the
contents of the police reports” and that he was “satisfied” he was aware of the
evidence against him. Defense counsel, in open court, expressly stipulated to a
factual basis for the plea. Defendant stated on the record that he understood that
both offenses would constitute “strikes” under the Three Strikes law in a
subsequent prosecution. The trial court accepted the plea, found a factual basis for
the plea, and placed defendant on formal probation for a term of five years, subject
to the condition that he not possess a firearm. The court dismissed the murder
count on the prosecutor’s motion.
The probation officer’s report prepared for the sentencing hearing in the
present case reflected that the two prior convictions for willful discharge of a
3
firearm were defendant’s only adult offenses, although defendant had committed
several offenses as a juvenile, including felony violations consisting of
discharging a firearm in a grossly negligent manner (§ 246.3) and driving with
willful disregard for the safety of persons or property while fleeing a pursuing
officer (Veh. Code § 2800.2, subd. (a)), as well as misdemeanor violations
consisting of resisting arrest (§ 148, subd. (a)(1)) and trespassing (§ 602, subd.
(o)). The probation report quoted the investigating officer in the present case,
Detective Solis, who stated his belief that defendant was a “magnet for gun-related
crimes,” and defendant’s supervising probation officer, who believed that
defendant was “an extremely dangerous person who should not be supervised on
the local level.” The probation officer’s report recommended against reinstating
defendant on probation, citing defendant’s “history of weapons related crimes”
and his poor performance on probation.
After finding true the prior-conviction allegations, the trial court in the
present case heard argument on defendant’s motion to strike the prior-conviction
allegation that was based on the March 1996 incident. Defense counsel
contended, in relevant part, that the trial court should take into consideration the
circumstance that with regard to the prior-strike conviction for willful discharge of
a firearm occurring in March 1996, the magistrate, after conducting a preliminary
hearing, had held that there was insufficient evidence to hold defendant to answer.
Defense counsel urged that, as a consequence of this action by the magistrate,
defendant’s two prior-strike convictions were not “indicative of [defendant’s]
background and his record.” Defense counsel also suggested in passing that there
existed an insufficient factual basis for defendant’s plea with respect to the March
1996 offense and that defendant entered the plea solely because of the favorable
plea negotiation and his desire to be released from custody. The prosecutor
responded by noting that defendant had entered his plea pursuant to a plea
4
agreement and had been informed that he would be subject to the Three Strikes
law in the event he reoffended.
After a brief discussion regarding the sentencing consequences of
dismissing one of the prior-conviction strike allegations, the trial court
commented: “Let’s go back to the 1385 issue. [¶] But for this argument . . . I
don’t see any justifications for striking any of the strikes. And given the criminal
record that Mr. Wallace has dating back to the time he was a juvenile continuing
into adulthood, and . . . in the probation report a Detective [Solis] is quoted as
saying the following about Mr. Wallace: ‘He’s a magnet for gun-related crimes.’
And his criminal history, juvenile and adult, seems to so indicate.” The trial court
later added: “So I just want to pause a little bit more about your argument here
relating to . . . one of the 246 counts because otherwise, quite frankly, I don’t think
I would be consistent with the proper exercise of my discretion to dismiss any of
the strikes, and the consequence of that would be that . . . I would have to, of
course, sentence Mr. Wallace to 25 to life.”
After hearing further argument from counsel, the trial court noted that the
magistrate at the preliminary hearing in the prior proceeding “had determined that
. . . based on the evidence that she heard in the matter there was insufficient
evidence to . . . even proceed with the charge against Mr. Wallace, and the
Superior Court sustained the motion to dismiss and by so doing essentially
confirmed as a practical matter Judge Lindenbaum’s [the magistrate] appraisal of
the situation.” The prosecutor responded that “whether the court dismissed it or
didn’t dismiss it in terms of a 995 really is [moot] at this point because the fact is
the information was amended, and the defendant pled no contest to it. . . . He
admitted it. Now the court is going behind his plea and saying, well, we don’t
really think it happened . . . .” Shortly thereafter, the following exchange took
place:
5
“The Court: Well, that it really didn’t happen in a sense they’re asking me
to take into account with respect to that conviction that . . . a judge found there
wasn’t even enough evidence to charge him with that. They’re asking me to take
that into account in exercising my discretion pursuant to 1385.
“[The prosecutor:] I don’t think that’s a proper argument in asking the
court to exercise discretion under 1385.
“The Court: Well, I think the court can examine whether a conviction is a
conviction in form rather than in substance. [¶] . . . I don’t mean to suggest by
that that the courts could or should look into every conviction that’s based upon a
plea and go beyond the plea, have a hearing with respect to all these matters. But
this particular case is unique. It doesn’t present that type of a situation. It’s not a
situation where a defendant is — I don’t take it to be where the defendant is
arguing ‘it didn’t happen, give me a chance to prove it.’ It’s saying in exercising a
1385[,] take into account that a judge found there wasn’t even evidence to charge
it.” (Italics added.)
The prosecutor reiterated his argument: “That is not a proper inquiry for
sentencing here. He stands convicted of it. He admitted that it’s true. Yes, he did
fire into an occupied vehicle . . . . ‘Yes, I did that. There is a factual basis for that,
and yes, I plead to that, and yes, I am subject to the three-strikes law, and yes, I
understand the court can sentence me to 25 to life.’ And now they’re coming back
and saying, no none of that is true.”
Nonetheless, the trial court announced: “I’m tentatively prepared to
dismiss the strike allegation predicated on the conviction for 246 occurring on or
about March 11th, 1996, pursuant to Penal Code section 1385 in the interest of
justice, finding that for the reasons that we’ve been discussing here on the record,
given the finding of Judge Laurel Lindenbaum in this case in connection with the
preliminary hearing, that there was insufficient evidence to even charge the
6
defendant in these matters, that the conviction which subsequently resulted —
when as part of a plea negotiation Mr. Wallace pled guilty to that, that for
purposes of the three-strike laws and the spirit of the three-strike laws it is really a
conviction more in form than in substance.”
The trial court continued: “I’ve taken into account . . . not only Judge
Lindenbaum’s—what she decided in this case, but also the fact that prior to the
instant case the 246 convictions were the only . . . adult criminal convictions
sustained by the defendant; and also taking into account . . . [that] although there
are arrests . . . suggestive of other criminal behavior, they did not result in
convictions. . . . [¶] All things considered, in the spirit of the law . . . pursuant to
People v. Williams [(1998) 17 Cal.4th 148] and other cases, this is truly a one-
strike case rather than a two-strike case.”
Based upon defendant’s conviction in the present case of being a felon in
possession of a firearm, the trial court revoked defendant’s probation with respect
to his two earlier convictions for willful discharge of a firearm (§ 246) and
sentenced him consecutively to a prison term of eight years and eight months for
these offenses, calculated as the upper term on one willful-discharge conviction
(seven years) plus one-third the midterm on the other willful-discharge conviction
(one year, eight months). (See § 1170.1.) With respect to the present offense of
being a felon in possession of a firearm, the trial court imposed a consecutive term
of 16 months, calculated as one-third the midterm (eight months) doubled under
the Three Strikes law (§§ 667, (e)(1), 1170.12, subd. (c)(1)), which term reflected
the circumstance that the trial court pursuant to section 1385 had dismissed one of
the section 246 prior-conviction strike allegations. The prison term imposed upon
revocation of defendant’s probation in the two earlier cases plus the sentence in
the current offense totalled 10 years.
7
After the trial court’s imposition of defendant’s sentence, the prosecutor
objected to defendant’s sentence “for the record” and suggested that the trial court
had “allowed [defendant] to back out of the deal he made previously . . . .” The
following exchange later occurred:
“[The prosecutor:] [W]hat I object to is the court looks at the strength or
proof put forward on the charge that the defendant admitted was true . . . . The
defendant says, ‘yes, it’s true. I have committed a violation of section 246.’ And
the court looks at it and says, ‘well, it doesn’t look like you really did it, looks like
it’s more form than substance here; thus I am not going to hold you to it.’ And
that really is where the strength of the 1385 argument came into play today. And
. . . had they not made that argument, I don’t think the court would have found the
defendant does not fall within the spirit of the three-strikes law. And I wanted to
have that clear for the record. And I want the court to agree with that assessment.
“The Court: I have stated as much. I stated except for the unique
circumstances of this case which lead me to conclude that for purposes of the spirit
of the three-strike laws that that conviction was more in form than in substance.
Except for that, I would not have dismissed.”
The trial court later clarified: “I should say that I said a little bit earlier that
but for this fact of what happened here, of the count having been dismissed
because of a specific finding by a judge of insufficient evidence, that . . . I would
not have stricken any of the strikes. [¶] On the other hand, I should make clear
that Judge Lindenbaum’s finding in here is not the only thing that I’m looking at
in connection with [striking] a strike. There are other things that supplement that,
none of which in and of themselves would have been enough . . . .”
On appeal, the district attorney contended that because defendant’s plea of
no contest admitted the factual bases for both prior offenses, the trial court, in
deciding whether to strike a conviction for purposes of sentencing, could not
8
properly consider the magistrate’s refusal to hold defendant to answer on the
charge of willful discharge of a firearm that was based upon the March 1996
incident. The Court of Appeal agreed, reversed the order striking the prior-
conviction allegation, and remanded the case for further proceedings, reasoning:
“Once Wallace entered his no contest plea, the elements of the offense and the
sufficiency of the evidence supporting that offense were established. [Citation.]
Reliance by the trial court on the preplea rulings of the magistrate and the superior
court concerning the sufficiency of the evidence presented at the preliminary
hearing was error and constituted an abuse of discretion. Although there are many
factors that may be considered by the trial court in the exercise of its broad
discretion to strike, this was not one of them.” Defendant petitioned for review,
contending that the magistrate’s conclusion after conducting a preliminary hearing
that there was insufficient evidence to hold defendant to answer constituted a
proper basis for the trial court’s exercise of discretion under section 1385 to strike
the ensuing prior conviction. We granted defendant’s petition for review.
II
This court emphasized in People v. Superior Court (Romero) (1996) 13
Cal.4th 497 that a “court’s discretion to strike prior felony conviction allegations
in furtherance of justice is limited” and that exercise of such discretion requires
“strict compliance with section 1385[, subdivision] (a), and is subject to review for
abuse.” (Id. at p. 530.) We explained that the trial court must give
“ ‘ “consideration both [to] the constitutional rights of the defendant and the
interests of society represented by the People in determining whether there should
be a dismissal . . . .” ’ ” (Ibid.) We gave as examples of abuse of discretion the
striking of a prior conviction “solely ‘to accommodate judicial convenience or
because of court congestion,’ ” or “simply because a defendant pleads guilty,” or
due to “ ‘personal antipathy for the effect that the three strikes law would have on
9
[a] defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present
offenses,’ and other ‘individualized considerations.’ ” (Id. at p. 531.)
We clarified in People v. Williams, supra, 17 Cal.4th 148 (Williams) that
the decision whether to strike a prior-conviction allegation under the Three Strikes
law requires the trial court to look “within the scheme in question, as informed by
generally applicable sentencing principles . . . .” (Williams, supra, 17 Cal.4th at
p. 160.) We explained that “no weight whatsoever may be given to factors
extrinsic to the [Three Strikes] scheme” and that “the court in question must
consider whether, 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, and hence should be treated as though he had
not previously been convicted of one or more serious and/or violent felonies.” (Id.
at p. 161.)
We also have emphasized that the decision before a court under this statutory
scheme relates to sentencing but does not affect the validity of the prior conviction.
(People v. Garcia (1999) 20 Cal.4th 490, 499.) A defendant’s sentence “is the
overarching consideration because the underlying purpose of striking prior conviction
allegations is the avoidance of unjust sentences.” (Id. at p. 500.)
The narrow inquiry we face in the present case is whether the circumstance
that a prior-strike-conviction allegation is based on a charge as to which a
magistrate previously held there was insufficient evidence to hold the defendant to
answer constitutes a proper consideration for a trial court engaged in determining
whether the defendant falls outside the spirit of the Three Strikes law for purposes
of striking the prior-conviction allegation  that is, whether this circumstance
sheds light upon “the nature and circumstances of [a defendant’s] . . . prior serious
and/or violent felony convictions” or “the particulars of [a defendant’s]
10
background, character, and prospects . . . .” (Williams, supra, 17 Cal.4th at
p. 161.) Defendant contends that the magistrate’s ruling was part of the “record of
conviction” of the prior case and constituted a factor relevant to the circumstances
of that offense.
As we shall explain, the circumstance that a magistrate declined to hold
defendant to answer on a charge that subsequently was refiled, and as to which
defendant subsequently pleaded no contest, has no bearing on either the nature of
defendant’s prior offenses or his background and character as they relate to the
Three Strikes law. Thus, the trial court abused its discretion when it relied on this
consideration as a primary basis for striking the prior-conviction allegation in the
present case.
Statements made by the trial court suggest that it found that the magistrate’s
ruling established there was insufficient evidence to prove defendant’s
commission of the March 1996 offense to which he pleaded no contest. The trial
court emphasized that, although courts generally should not “look into every
conviction that’s based upon a plea and go beyond the plea,” the situation here
was “unique” because the magistrate’s ruling reflected that defendant’s prior
conviction was “really a conviction more in form than in substance” as “part of a
plea negotiation . . . .” In this context, the trial court apparently came to this
conclusion because of its belief that the magistrate’s ruling demonstrated that
defendant entered a no contest plea to a charged offense that he had not actually
committed.
It is apparent that the trial court granted the motion to dismiss on the basis
of a misapprehension concerning the limited function performed by a magistrate.
When a magistrate declines to hold a defendant to answer on the ground that the
evidence at the preliminary hearing did not establish probable cause to believe the
defendant committed the charged offense, the ruling does not bar future
11
prosecution. (People v. Uhlemann (1973) 9 Cal.3d 662, 667-668.) The magistrate
lacks authority to determine the guilt or innocence of the defendant. The
prosecution may file another complaint charging the same offense or may file an
information charging the same offense in the trial court. (Id. at p. 666; see also §§
871.5, 999.) We have explained that the preliminary hearing “is not a trial, and if
the magistrate forms a personal opinion regarding the guilt or innocence of the
accused, that opinion is of no legal significance whatever in view of the limited
nature of the proceedings.” (People v. Uhlemann, supra, 9 Cal.3d at p. 667; see
also Cooley v. Superior Court (2002) 29 Cal.4th 228, 251.) “[T]he doctrines of res
judicata or collateral estoppel are inapplicable to orders dismissing criminal
proceedings following preliminary hearings.” (People v. Uhlemann, supra, 9
Cal.3d at pp. 667-668.) A deficiency of proof at a preliminary hearing frequently
reflects a temporary state of affairs. The prosecution may discover and proffer
additional proof by the time a second preliminary hearing is held or by the time
the case proceeds to trial. The defendant’s culpability may be established through
the introduction of evidence at trial or, alternatively, by the defendant’s plea of
guilty or no contest. Such a plea ordinarily includes an admission that there is a
factual basis for the plea, and when the plea represents a negotiated disposition —
as it did in the present case — the court must satisfy itself that a factual basis for
the plea exists. (See § 1192.5; People v. Holmes (2004) 32 Cal.4th 432, 438;
People v. Hoffard (1995) 10 Cal.4th 1170, 1181.)
Under the circumstances, the statement of the trial court in the present case
that defendant’s prior conviction was a “conviction in form rather than in
substance” was contrary to established law. Defendant pleaded no contest to the
prior charges of willful firearm-discharge. “The legal effect of such a plea, to a
crime punishable as a felony, shall be the same as that of a plea of guilty for all
purposes.” (§ 1016, subd. 3.) A guilty plea “admits every element of the crime
12
charged” (People v. Thomas (1986) 41 Cal.3d 837, 844, fn. 6) and “is the ‘legal
equivalent’ of a ‘verdict’ [citation] and is ‘tantamount’ to a ‘finding’ [citations]”
(People v. Statum (2002) 28 Cal.4th 682, 688, fn. 2). By contrast, as we already
have noted, any determination by the magistrate that the evidence at the
preliminary hearing did not establish probable cause to believe the defendant
guilty is not a binding determination reflecting on defendant’s guilt or innocence.
Further, defendant stipulated to the existence of a factual basis for his plea
by initialing the portions of the change-of-plea form indicating that he had
discussed with defense counsel “the contents of the police reports” and was
“satisfied” he was aware of the evidence against him. Defendant could not have
appealed from his ensuing conviction on the basis of insufficiency of the evidence.
(People v. Stanworth (1974) 11 Cal.3d 588, 604-605, disapproved on other
grounds in People v. Martinez (1999) 20 Cal.4th 225, 237.) Indeed, defendant
specifically acknowledged on the record during his no contest plea that he
understood his offenses would constitute strikes under the Three Strikes law in any
subsequent prosecution. In light of defendant’s express stipulation as to the
factual basis of his plea and his acknowledgment that his offenses constituted
strikes, the trial court was not free to look beyond defendant’s no contest plea,
which was “ ‘tantamount’ to a ‘finding’ ” of culpability for the prior offense
(People v. Statum, supra, 28 Cal.4th at p. 688, fn. 2), nor could the trial court
properly give dispositive weight to the magistrate’s evaluation of the evidence at
some earlier period in the prior proceeding.
In addition, we believe that by relying upon the magistrate’s ruling, the trial
court not only misapprehended the limited function played by the magistrate at a
preliminary hearing, but also failed to give due consideration to the nature of the
plea negotiation process. A defendant who enters into a negotiated disposition
gains benefits that, assuming the plea meets various requirements, bar him or her
13
from asserting at a later date that there was insufficient evidence of guilt to support
the plea and the ensuing conviction. (See In re Troy Z. (1992) 3 Cal.4th 1170,
1180-1181.) In Brady v. United States (1970) 397 U.S. 742, the United States
Supreme Court described the benefits to the parties of plea negotiation: “For a
defendant who sees slight possibility of acquittal, the advantages of pleading
guilty and limiting the probable penalty are obvious — his exposure is reduced,
the correctional processes can begin immediately, and the practical burdens of a
trial are eliminated. For the State there are also advantages — the more promptly
imposed punishment after an admission of guilt may more effectively attain the
objectives of punishment; and with the avoidance of trial, scarce judicial and
prosecutorial resources are conserved for those cases in which there is a
substantial issue of the defendant’s guilt or in which there is substantial doubt that
the State can sustain its burden of proof.” (Id. at p. 752, footnote omitted; see
People v. Orin (1975) 13 Cal.3d 937, 942-943.) It is evident that both parties may
reap benefits from a negotiated disposition; to permit a defendant to seek at a
hearing under section 1385 to avoid some of the consequences of the plea, while
holding the prosecution to the negotiated disposition, would not be consistent with
our directive that the court also consider “ ‘ “the interests of society represented by
the People in determining whether there should be a dismissal.” ’ ” (People v.
Superior Court (Romero), supra, 13 Cal.4th at p. 530, italics omitted.)
Although the magistrate found insufficient evidence to hold defendant to
answer on the charge of willful discharge of a firearm based upon the March 1996
incident (an offense for which defendant later entered his no contest plea), this
circumstance alone does not suggest that defendant fell outside the spirit of the
Three Strikes scheme. Defendant pleaded no contest to that charge in order to
avoid a trial on the more serious offense of murder, a charge concerning which
there was no question regarding the sufficiency of the prosecution’s evidence at
14
the preliminary hearing. In dismissing the prior-conviction allegation based upon
an assumption that the magistrate’s earlier ruling established that defendant did
not actually commit that prior offense, the trial court failed adequately to take into
account the totality of the circumstances surrounding defendant’s prior plea and
the manner in which defendant came to be convicted of that offense.
Defendant urges that the magistrate’s earlier ruling was part of the “record
of conviction” of the prior offense, and thus constituted a relevant consideration
for the trial court in determining whether to dismiss the prior-strike-conviction
allegation. For the reasons discussed above, however, the circumstance that the
earlier ruling was part of the record did not render that ruling relevant for purposes
of a motion under section 1385 to dismiss the allegation.
In support of his position that the magistrate’s failure to hold defendant to
answer was a relevant consideration under section 1385, defendant cites Specht v.
Patterson (1967) 386 U.S. 605 (Specht) and Gill v. Ayers (9th Cir. 2003) 342 F.3d
911 (Gill). In Specht, the defendant was convicted of “indecent liberties” in
violation of a Colorado statute that provided for a maximum prison sentence of 10
years. Despite the determinate term prescribed for the charged offense, the
defendant was sentenced to an indeterminate term under the Colorado Sex
Offenders Act, which allowed such sentencing if the trial court found, in reliance
upon a report prepared by a court-appointed psychiatrist, that the defendant
constituted a threat of harm to the public or was a “ ‘habitual offender and
mentally ill.’ ” (Specht, supra, 386 U.S. at p. 607.) Observing that the hearing
was not an ordinary sentencing hearing but essentially involved trial of a new
charge, the United States Supreme Court found that the procedure permitting
imposition of a sentence in excess of the maximum for the charged offense
violated due process principles. As the high court declared, “the invocation of the
Sex Offenders Act means the making of a new charge leading to criminal
15
punishment” was involved, requiring “ ‘reasonable notice and an opportunity to be
heard.’ ” (Id. at p. 610.)
In Gill, the prosecution alleged that the defendant’s prior conviction for
assault with a deadly weapon (§ 245, subd. (a)(1)) constituted a strike. Assault
with a deadly weapon would qualify as a strike only if the defendant personally
inflicted great bodily injury. (See §§ 667, subd. (d)(1), 1170.12, subd. (b)(1),
1192.7, subd. (c)(8).) A court trial was held on the strike allegation, focusing
specifically on the issue whether the defendant personally inflicted great bodily
injury. The trial court found the strike allegation to be true, concluding that the
defendant personally inflicted great bodily injury, based upon his statements to the
probation officer as reflected in the probation report. The defendant sought an
opportunity to testify at the court trial in order to explain his prior statements and
to deny that he personally inflicted great bodily injury, but the trial court denied
the request. The Ninth Circuit, relying upon Specht, concluded that the denial of
the opportunity to testify at the trial of the strike allegation violated due process
principles. (Gill, supra, 342 F.3d at pp. 917-921.)
The cited cases did not consider what types of evidence may be considered
by the trial court in connection with a motion to strike an otherwise valid prior-
conviction allegation, a question here at issue. These cases are of no assistance to
defendant, even assuming they would apply to a sentencing hearing where the
court is considering whether to exercise its sentencing discretion to strike a prior-
conviction allegation under section 1385. Defendant in the present case did not
request the opportunity to testify or present evidence, and the trial court did not
hear any testimony or otherwise take any evidence. Defendant also did not claim
that he lacked notice of the strike allegations. Indeed, defendant in the present
case, unlike the defendant in Gill, at no time claimed that his prior convictions did
16
not constitute strikes, because the willful discharge of a firearm is an enumerated
serious felony. (§ 1192.7, subd. (c)(33).)
Defendant argues that the trial court’s order striking one of his prior
convictions for purposes of sentencing under the Three Strikes law was supported
by factors other than the circumstance that the magistrate had declined to hold
defendant to answer on the underlying charge. Defendant asserts that the trial
court based its decision in part on other factors, such as defendant’s youth, his lack
of adult prior convictions (other than his strike convictions) and lack of prison
terms, and his “current nonviolent crime,” as well as the length of the prison
sentence (10 years) that the trial court was imposing. It is evident from the record,
however, as the Court of Appeal determined, that the trial court gave dispositive
weight to the magistrate’s ruling. Before striking one of the two prior-conviction
allegations, the trial court made reference to defense counsel’s assertion that the
magistrate’s ruling demonstrated that defendant’s two prior-strike convictions
were not “indicative of [defendant’s] background and his record,” and observed
that “[b]ut for this argument . . . I don’t see any justifications for striking any of
the strikes” and that “otherwise, quite frankly, I don’t think I would be consistent
with the proper exercise of my discretion to dismiss any of the strikes . . . .” After
striking one prior-conviction allegation, the trial court reiterated at the
prosecutor’s request that “except for the unique circumstances of this case which
lead me to conclude that for purposes of the spirit of the three-strike laws that that
conviction was more in form than in substance . . . I would not have dismissed”
and “but for this fact of what happened here, of the count having been dismissed
because of a specific finding by a judge of insufficient evidence . . . I would not
17
have stricken any of the strikes.” In relying upon this factor, the trial court abused
2
its discretion, as we have shown.
Defendant is free to contend on remand that other factors take him outside
the spirit of the Three Strikes scheme and warrant striking the prior-conviction
allegations pursuant to section 1385. Under Williams (Williams, supra, 17 Cal.4th
at p. 161), such factors may include, but are not limited to, those noted by
defendant above, as well as the “nature and circumstances” of his past and present
convictions suggesting that the offenses were mitigated either in the manner of
their commission (for example, an offense was committed in a less serious or
violent manner than would normally be expected of such a crime) or in the level of
defendant’s participation (for example, defendant played a subordinate role in the
3
commission of the offense).
2
Defendant suggests in passing that the trial court, in the exercise of its
discretion under section 1385, properly may consider the evidence adduced at the
preliminary hearing in the prior case. The record does not suggest that the trial
court considered such evidence in striking one of defendant’s prior convictions in
the present case, but rather considered only the fact of the magistrate’s ruling
declining to hold defendant to answer. Accordingly, we need not comment upon
the propriety of a trial court considering the evidence presented at the preliminary
hearing.
3
We have no occasion to determine in this case whether a trial court properly
may strike a prior-conviction allegation in furtherance of justice under section
1385 based upon proof of factual innocence of the prior offense, and if so, what
types of evidence the court may consider for this purpose. As the record reflects,
defendant did not expressly argue that the trial court should strike a prior-
conviction allegation in furtherance of justice because he was factually innocent of
a prior offense, nor did he attempt to present evidence of his factual innocence of
the prior offense. The trial court recognized that defendant was not making such
an argument, commenting: “It’s not a situation where a defendant is—I don’t take
it to be where the defendant is arguing ‘it didn’t happen, give me a chance to
prove it.’ It’s saying in exercising a 1385[,] take into account that a judge found
there wasn’t even evidence to charge it.” Although defense counsel suggested in
(footnote continued on following page)
18
In sum, the circumstance that a magistrate previously declined to hold
defendant to answer on a charge after conducting a preliminary hearing was not a
proper consideration in determining whether defendant fell outside the spirit of the
Three Strikes scheme and did not provide a proper basis for dismissing a prior-
strike-conviction allegation. The magistrate’s ruling did not illuminate the
circumstances surrounding the commission of the prior offense, nor was it relevant
in evaluating defendant’s “background, character, and prospects . . . .” (Williams,
supra, 17 Cal.4th at p. 161.) By giving dispositive weight to the magistrate’s
ruling, the trial court failed to take into account the limited function of the
magistrate, as well as the nature of the plea negotiation process and the totality of
the circumstances surrounding defendant’s prior plea.

(footnote continued from preceding page)
passing that defendant entered his previous no contest plea solely because of a
favorable plea negotiation and his desire to be released from custody, “[i]t is
axiomatic that the unsworn statements of counsel are not evidence.” (In re Zeth S.
(2003) 31 Cal.4th 396, 414, fn. 11.)
19


III
The judgment of the Court of Appeal is affirmed.

GEORGE,
C.
J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

20


CONCURRING OPINION BY MORENO, J.

I concur in the opinion as narrowly written. As the majority states, it does
not decide the issue of whether “the trial court, in the exercise of its discretion
under [Penal Code] section 1385, properly may consider the evidence adduced at
the preliminary hearing in the prior case. The record does not suggest that the trial
court considered such evidence in striking one of defendant’s prior convictions in
the present case, but rather considered only the fact of the magistrate’s ruling
declining to hold defendant to answer. Accordingly, we need not comment upon
the propriety of a trial court considering the evidence presented at the preliminary
hearing.” (Maj. opn, ante, at p. 19, fn. 2, italics added.)
I agree that the mere facts that the magistrate declined to hold defendant to
answer in one of the prior convictions to which defendant eventually pleaded
guilty, and that the trial court set aside the charge pursuant to Penal Code section
995, subdivision (a)(2), do not by themselves justify the dismissal of the strike
under section 1385. But in my view nothing forbids a court from considering the
insufficiency of the underlying evidence to determine whether the magistrate and
the trial court were correct in their rulings, and in then dismissing a strike on that
basis.
As we stated in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling
whether to strike or vacate a prior serious and/or violent felony conviction
allegation or finding under the Three Strikes law, on its own motion, ‘in
furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing
such a ruling, the court in question must consider whether, 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
1



defendant may be deemed outside the scheme’s spirit, in whole or in part, and
hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” The fact that there was insufficient
evidence to hold defendant to answer on one of the prior felony convictions is a
relevant “circumstance of [a defendant’s] . . . prior serious and/or violent felony
convictions.” (Ibid.) If there is indeed insufficient evidence as to one of the
convictions to which a defendant pleaded guilty, that fact may well enter into the
trial court’s assessment of defendant’s threat as a recidivist, and therefore whether
the imposition of the permitted punishment under the “Three Strikes” law really
serves the purpose of that law.
Such an examination of the evidence of the underlying offense is not an
impermissible collateral attack on a plea agreement, because the plea, and the
conviction, are unaffected by the trial court’s decision. (See People v. Garcia
(1999) 20 Cal.4th 490, 499.) Nor would a trial court considering such evidence be
acting from considerations identified as improper in People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 531, i.e., “solely ‘to accommodate judicial
convenience or because of court congestion.’. . . [or] if ‘guided solely by a
personal antipathy for the effect that the three strikes law would have on [a]
defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his present
offenses,’ and other ‘individualized considerations.’ ”
In short, the fact that there was insufficient evidence to hold a defendant to
answer for an offense to which he eventually pleaded guilty has bearing on
whether the defendant is in whole or in part outside the spirit of the Three Strikes
law. A trial court should be able to consider this fact in determining whether to
dismiss a strike under section 1385.
MORENO, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wallace
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 105 Cal.App.4th 250
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S113321
Date Filed: July 26, 2004
__________________________________________________________________________________

Court:

Superior
County: Contra Costa
Judge: Peter L. Spinetta

__________________________________________________________________________________

Attorneys for Appellant:

Robert J. Kochly and Gary T. Yancey, District Attorneys, and Doug MacMaster, Deputy District Attorney,
for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

William D. Farber, under appointment by the Supreme Court, for Defendant and Respondent.


1



Counsel who argued in Supreme Court (not intended for publication with opinion):

Doug MacMaster
Deputy District Attorney
725 Court Street, 4th Floor
Martinez, CA 94553
(925) 646-4528

William D. Farber
P.O. Box 2026
San Rafael, CA 94912
(415) 472-7279
2


Opinion Information
Date:Docket Number:
Mon, 07/26/2004S113321

Parties
1Wallace, Harold Austin (Defendant and Respondent)
Represented by William D. Farber
Attorney At Law
P O Box 2026
San Rafael, CA

2The People (Plaintiff and Appellant)
Represented by District Atty - Contra Costa County
Doug MacMaster, DDA
P. O. Box 670
Martinez, CA


Disposition
Jul 26 2004Opinion: Affirmed

Dockets
Feb 4 2003Received premature petition for review
  from counsel for respondent (Harold Austin Wallace).
Feb 11 2003Case start: Petition for review filed
  by counsel for respondent
Feb 13 2003Received:
  from counsel for appellant Certif. of Compl. Word Count.
Feb 21 2003Received Court of Appeal record
  1-box containing 1-file jacket, 1-sealed envelope, briefs, CT-4 & RT-7
Mar 26 2003Petition for Review Granted (criminal case)
  George, CJ., Kennard, Werdegar and Chin, JJ.
Apr 15 2003Counsel appointment order filed
  William Farber is hereby appointed to represent respondent on his appeal now pending in this court. Respondent's brief on the merits shall be served and filed on or before thirty (30) days from the of this order.
May 12 2003Request for extension of time filed
  counsel for respondent requests an extension to June 16, 2003 to file the opening brief on the merits.
May 14 2003Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including June 16, 2003.
Jun 13 2003Request for extension of time filed
  for resp to file the opening brief on the merits, to 7-16-03.
Jun 17 2003Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including July 16, 2003. No further extensions of time are contemplated.
Jul 14 2003Request for extension of time filed
  Counsel for respondent requests extension to August 15, 2003 to file the opening brief.
Jul 16 2003Extension of time granted
  Respondent's time to serve and file the opening brief is extended to and including August 15, 2003. No further extensions of time will be granted.
Aug 11 2003Opening brief on the merits filed
  by counsel for respondent (Wallace)
Aug 27 2003Compensation awarded counsel
  Atty Farber
Sep 11 2003Request for extension of time filed
  counsel for appellant (People) requests extension of time to October 30, 2003 to file the answer brief. (40k)
Oct 8 2003Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including October 30, 2003.
Oct 30 2003Answer brief on the merits filed
  by counsel for aplt.
Nov 17 2003Request for extension of time filed
  counsel for aplt. requests extension of time to December 18, 2003, to file the reply brief on the merits.
Nov 21 2003Extension of time granted
  Appellant's time to serve and file the reply brief on the merits is extended to and including December 18, 2003.
Dec 15 2003Request for extension of time filed
  counsel for resp. requests extension of time to January 19, 2004 to file the reply brief on the merits.
Dec 23 2003Extension of time granted
  Respondent's time to serve and file the reply brief on the merits is extended to and including January 19, 2004.
Jan 13 2004Request for extension of time filed
  Counsel for respondent requests extension of time to February 18, 2004 to file the reply brief on the merits. *** granted *** order being prepared.
Jan 22 2004Extension of time granted
  Recpondent's time to serve and file the reply brief on the merits is extended to and including February 18, 2004, No further extensions of time will be contemplated.
Feb 19 2004Reply brief filed (case fully briefed)
  by counsel for resp. (H. Wallace) (40k)
Mar 30 2004Compensation awarded counsel
  Atty Farber
Apr 28 2004Case ordered on calendar
  5-27-04, 9am, S.F.
May 18 2004Received:
  from counsel for aplt. (Wallace) Additional Authorities in Advance of Oral Argument (40k)
May 27 2004Cause argued and submitted
 
Jul 26 2004Opinion filed: Judgment affirmed in full
  Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Brown, & Moreno, JJ. Concurring opinion by Moreno, J.
Aug 18 2004Compensation awarded counsel
  Atty Farber
Aug 26 2004Remittitur issued (criminal case)
 
Sep 10 2004Received:
  receipt for remittitur from CA 1/4

Briefs
Aug 11 2003Opening brief on the merits filed
 
Oct 30 2003Answer brief on the merits filed
 
Feb 19 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website