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REVERSAL HIGHLIGHTS THE BUMMER OF AN APPELLATE JOB It can be a decidedly uncomfortable spot: stuck between a trial court’s technical slip-up and a Supreme Court precedent that won’t let you ignore it. The frustration, oozing from the pages of a recent First District opinion, must be all too familiar to appeal court justices. Earlier this month, a panel reluctantly reinstated some sentencing enhancements against two drug defendants because even though Contra Costa County Superior Court Judge Theresa Canepa had explained her reasons for striking them in plenty of detail, she had failed to record them in the exact place required by Penal Code �l;1385. “Our hands are tied,” wrote Justice James Richman. But that didn’t stop Richman � with concurring Justices Paul Haerle and James Lambden � from spending most of the 23-page opinion making a case for changing the statute, or at least the Supreme Court case law that has interpreted it. The Penal Code section, which the panel points out was enacted in 1872, says dismissals of criminal prosecutions “must be set forth in an order entered upon the minutes.” According to Richman, two Supreme Court cases have essentially concluded that no matter how conscientiously a judge describes his reasons before a court reporter, his decision has to be reversed unless he’s memorialized the same information in an order on the minutes. Judge Canepa had offered two defendants in a methamphetamine-manufacturing case plea bargains for sentences of six years, eight months, and eight years, respectively. Amid prosecutors’ objections � they wanted 17 years each for Thomas Bonnetta and Michael Claude Wilen � Canepa explained how she arrived at her sentences, for example, by striking enhancements for prior convictions that were nearly 20 and 30 years old. “The idea of reversing so that the trial court could put into a minute order the same explanation we already have in a reporter’s transcript seems pointless,” Richman wrote. But, “it is at this point that irresistible logic confronts the immovable object � more precisely, two immovable objects named Orin and Romero.” The panel said Bonnetta and Wilen’s case illustrates why the Supreme Court or Legislature should reexamine �1385 � and not only because their reluctant reversal in this month’s People v. Bonnetta, 07 C.D.O.S. 13163, amounted to “a pointless expenditure of time and money.” Richman also noted that some sections of the Health and Safety Code that govern drug-related offenses allow judges to strike enhancements by simply stating their reasons on the record � no minute order necessary. “If Judge Canepa had proceeded under that provision [rather than �1385], a remand would not be necessary,” Richman wrote. “The trial courts of this state are already burdened with caseload and sentencing complexity,” he added. “They are confronting a new wave of sentencing remands required by [this year's] Cunningham v. California. Further burdens should be avoided.”

Pam Smith

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