Filed 10/30/14 P. v. Rowley CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Appellant,

v.
JEFFREY MARTIN ROWLEY,
Defendant and Respondent. 2d Crim. No. B256150 (Super. Ct. No . 2013037762) (Ventura County)

Jeffrey Martin Rowley pl ed guilty to two felony counts of second degree burglary of a vehicle (Pen. Code, §§ 459, 460, subd. (b)). 1 He admitted having a prior strike conviction for first degree residential bu rglary (§§ 459, 667, subds. (a)(1) & (b)-(i), 1170.12, subds. (a)-(d)), and serving three prio r prison terms (§ 667.5, subd. (b)). The trial court granted Rowley's Romero ( People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 ( Romero )) motion to dismiss the prior strike allegation for purposes of sentencing. (§ 13 85, subd. (a).) The cour t orally stated that "this particular offense and the nature of th e offense [do not] warrant a lengthier prison
sentence than what is ab out . . . to be imposed." It sent enced Rowley to the low term of 16 months on each count, to be served concurrently, plus a consecutive 12 months for

1 All statutory references are to the Penal Code unless otherwise stated.2 one prison prior, for a total term of 28 mont hs. The court struck the other two prison priors and awarded 197 days of custody/conduct credit. 2 (§ 4019.) The People contend the trial court im properly dismissed the prior strike conviction allegation without considering Ro wley's lengthy, serious and continuous criminal history and without recording its reas ons for the dismissal in the court minutes. Rowley concedes the court co mmitted reversible error by failin g to enter its reasons for dismissing the prior strike in the minutes. We vacate the sentence and remand with
instructions.
FACTS In 1993, the juvenile court sust ained a petition against Rowley for attempted first degree burglary (§§ 664/459). While still a juvenile, Rowley admitted to vehicle theft. (Veh. Code, § 10851, subd. (a).) In 2000, Rowley wa s convicted by plea of first degree residential burglary (§§ 459, 460, subd. (a)), the current strike prior. Rowley had en tered and ransacked a detached garage, causing a $1,000 loss, and th en entered another residence through the kitchen window and stole $970 in property. He was sentenced to a four-year prison term, plus a consecutive eight-month term for a sepa rate conviction of petty theft with a prior (§ 666). After being released on parole, Rowley was convicted of two felony counts of identity theft (§ 530.5, subd. (a)) for stealing and usi ng the victim's credit card to charge approximately $780. The trial court struck Rowley's prior strike allegation and sentenced him to two years in prison. In 2010, Rowley was co nvicted of forgery (§ 470, subd. (d)). The trial court denied his motion to dismiss the prio r strike allegation an d sentenced him to 32 months in prison.

2 Rowley was subject to a maximum sentence in this case of 10 years 4 months, i.e., the high term for one second degree vehi cle burglary (3 years) plus a consecutive term for the second vehicle burglary (8 months ), doubled under the three strikes law to 7 years 4 months, plus 3 years for the three adm itted prior prison terms. (See §§ 461, subd. (b), 667, subds. (a)(1) & (b)-(i), 667.5, su bd. (b), 1170.12, subds. (a)-(d).)3 In addition to committing th e two vehicle burglaries in this case, Rowley was charged and convicted in a separate misd emeanor case with hit and run while driving without a license. (Veh. Code, §§ 20002, subd . (a), 12500, subd. (a).) He was sentenced to 180 days, to be served concurrently with the 28-month term in this case.
DISCUSSION Section 1385, subdivision (a) permits the trial court, in furtherance of justice, to dismiss a prior strike allegation for purposes of sentencing if the defendant falls outside the spirit of the three strikes law. ( People v. Williams (1998) 17 Cal.4th 148, 161 ( Williams ).) When the court decides to dismi ss a prior strike, it must state the
reasons for that action "in an order entered upon the minutes." (§ 1385, su bd. (a); People
v. Bonnetta (2009) 46 Cal.4th 143, 145-146 ( Bonnetta ).) Here, it is undisputed the trial cour t did not comply with section 1385, subdivision (a). Although the court orally stated its reasons for dismissing the prior strike, it did not enter them upon the minutes . Rowley concedes, and we agree, that pursuant to Bonnetta, the matter must be remanded to allow the court to correct this error. ( Bonnetta, supra, 46 Cal.4th at p. 153.) The requirement for a statement of re asons for dismissal is mandatory, not directory, and in the absence of such a statem ent, the order is not an effective dismissal under section 1385. ( Bonnetta, supra , 46 Cal.4th at p. 152.) Bonnetta confirmed "that the public declaration inherent in a written order is a purposeful restraint, that . . . section 1385's requirements are not directory and may not be disregarded, and that a reporter's transcript showing the trial cour t's motivation is not enough; the minutes must reflect the reason." ( Id. at p. 149; see Romero , supra , 13 Cal.4th at p. 531; People v. Superior Court (2002) 97 Cal.App.4th 530, 538-539.) The c ourt rejected a rule "that would allow the reviewing court to uphold the trial court's or der if, but only if, it finds the trial court's reasons to be clearly articulated [in a reporter's transcript], or if any and all of the reasons mentioned would justify dismissal." ( Bonnetta, at p. 152.) It explained that "such a rule, while reducing the trial court's burden, would in crease that of the appellate courts without4 eliminating the possibility the reviewing cour t would misidentify the specific reason or reasons for the trial court's ruling." ( Ibid. ) The People contend that a remand so lely to correct the minutes is an inadequate remedy because the trial court's reasons for dismissing the prior strike, as reflected in the reporter's transc ript, are legally insufficient. Williams, supra, 17 Cal.4th at page 161, required the court to "consi der whether, in light of the nature and circumstances of [the defendant's] present fe lonies and prior seriou s and/or violent felony convictions, and the particulars of his b ackground, character, and prospects, the defendant may be deemed outside the [three stri kes law] scheme's spir it, in whole or in part, and hence should be treat ed as though he had not prev iously been convicted of one
or more serious and/or violent felonies." In dismissing the st rike, the court simply stated "this particular offense and the nature of th e offense [do not] warrant a lengthier prison sentence." The People maintain the court e rred as a matter of la w by ignoring Rowley's significant criminal history, background, charact er and prospects in reaching its decision. (See ibid. ) Where, as here, the court's order of dismissal is ineffective, we must remand the matter "at least for the purpose of a llowing the trial court to correct the defect by setting forth its reasons in a writte n order entered upon the minutes." ( Bonnetta,

supra, 46 Cal.4th at p. 153.) In other words, we lack authority to review a dismissal that has not been properly entered. ( Id. at pp. 151-152.) On remand, the trial court "may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete." ( Id. at p. 153.) As Bonnetta explained, "[j]udicial economy is furthered by allowing the trial court to correct what, upon re consideration and reflection, it perceives to have been an unwarranted dismis sal, or to consider if a dismissal should be ordered for some new or different reason." ( Ibid. )
DISPOSITION
The sentence is vacated and the matte r is remanded for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED.5 PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.6 Ryan J. Wright, Judge

Superior Court County of Ventura

________________ ______________
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, for Appellant. Stephen P. Lipson, Public Defende r, Michael C. McMahon, Chief Deputy, for Respondent.