Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC641273
Mihara, J.
Defendant Sarah Wunderlich was convicted by court trial of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor using or being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). The trial court reduced the felony to a misdemeanor, declared defendant eligible for Proposition 36 treatment, suspended imposition of sentence, and placed her on formal probation for one year. On appeal, defendant challenges the trial court’s determination that it lacked jurisdiction to excise the reference to methamphetamine from each charged count “in furtherance of justice” under Penal Code section 1385. We conclude the court correctly recognized the limits of its section 1385 discretion, and we affirm.
] All further statutory references are to the Penal Code unless otherwise noted.
I. Factual and Procedural Background
Defendant was three years old when her family emigrated to this country in 1988. She obtained a green card in 2004 but remains a citizen of Germany.
In 2006, defendant was charged by amended complaint with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor using or being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). She waived her right to a preliminary examination and pleaded guilty to the charges. The trial court found her eligible for Proposition 36 drug treatment and released her on her own recognizance. That same day, she was taken into custody by Immigration and Customs Enforcement (ICE). She moved to withdraw her guilty pleas on the ground defense counsel failed to fully explain the immigration consequences—i.e., that conviction on charges identifying methamphetamine would trigger mandatory deportation whereas conviction on charges referring only to an unspecified “controlled substance” would not. The trial court granted defendant’s motion and vacated her guilty pleas. The court denied her subsequent request to dismiss all charges “in furtherance of justice” under section 1385.
Defendant then filed a motion offering to plead guilty to both counts on condition that the trial court “dismiss” the reference to methamphetamine from each count “in furtherance of justice.” The trial court denied the motion on jurisdictional grounds, explaining that “I just see a real difference between dismissing a count in the interest of justice or even a complaint in the interest of justice, from amending language in a charging document.” “This court does lack the power to amend the charging document sua sponte and this court also lacks the power to strike portions of the charging document sua sponte. I am satisfied that I do not have the jurisdiction to do what the defendant is asking me to do so I am going to decline the invitation to amend the charging document and deny the motion.”
Defendant petitioned this court for a writ of mandamus directing the trial court to excise the word “methamphetamine” from each count and permit her to plead guilty to possession and use of an unidentified “controlled substance.” This court denied the petition. Waiving her right to a jury trial, defendant submitted the case to a court trial on the police and laboratory reports. The court found her guilty as charged. The court reduced the felony to a misdemeanor, found defendant eligible for Proposition 36 treatment, suspended imposition of sentence, and granted probation. She was returned to ICE custody. Defendant filed a timely notice of appeal.
II. Discussion
A. Standard of Review
A trial court’s informed exercise of its discretion to dismiss or not to dismiss an action under section 1385 is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.) But where, as here, the trial court’s decision is founded on its determination that it lacks jurisdiction under the statute to grant the requested relief, the question is one of statutory interpretation. The interpretation of a statute presents a pure question of law that we review de novo. (People v. Bergen (2008) 166 Cal.App.4th 161, 167.)
B. Analysis
Defendant contends the court has authority under section 1385 “to dismiss entire charges and portions of a charge, including minor factual allegations comprising a small part of a charge.” “Dismissing” the word “methamphetamine” from each count in the complaint, she argues, “thus fell squarely within the court’s section 1385 powers.” We disagree. As the California Supreme Court noted in People v. Orin (1975) 13 Cal.3d 937, 945 (Orin), “[t]he trial court’s power to dismiss an action under section 1385, while broad, is by no means absolute.”
In determining the scope of the trial court’s authority under section 1385, we are guided by well-established principles. “As with any statutory construction inquiry, we must look first to the language of the statute. ‘To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.’ [Citation.] If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.]” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047.)
Section 1385 provides that “[t]he judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) By its plain terms, it limits the trial court’s power, authorizing only the dismissal of “actions” and then only if the dismissal is “in furtherance of justice.” Here, the first limitation is dispositive.
In People v. Hernandez (2000) 22 Cal.4th 512, 524 (Hernandez), the court held that “[t]he only action that may be dismissed under Penal Code section 1385, subdivision (a), is a criminal action or a part thereof.” “A criminal action is a ‘proceeding by which a party charged with a public offense is accused and brought to trial and punishment.’ (Pen. Code, § 683.) It consists of all charges and allegations ‘prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.’ (Id., § 684.)” (Hernandez, at p. 521 [sanity phase of murder trial not an “action”].) By its plain terms, section 1385 contemplates the dismissal of an entire complaint, information, or indictment. (E.g., People v. Konow (2004) 32 Cal.4th 995, 1027-1028 [magistrate authorized to dismiss complaint]; People v. Brunner (1973) 32 Cal.App.3d 908, 910, 912 [trial court properly dismissed indictment]; People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 493, 505 [trial court authorized to dismiss information after jury verdict]; People v. Superior Court (Prudencio) (1927) 202 Cal. 165, 173 [“The dismissal of an action or indictment goes to the indictment as a whole, which may include a number of degrees of the crime pleaded”], disapproved on another ground in People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501.)
Section 1385 “has also been construed to reach parts of an action, i.e., individual charges and allegations in a criminal action. [Citations.]” (Hernandez, supra,22 Cal.4that pp. 521-522; e.g., People v. Polk (1964) 61 Cal.2d 217, 220, 226, 229 (Polk) [two counts dismissed before jury empaneled; murder charge against one defendant dismissed during trial]; People v. Orabuena (2004) 116 Cal.App.4th 84, 95-96 (Orabuena) [conviction on misdemeanor count dismissed].) That section 1385 contemplates not only dismissal of entire actions but also dismissal of one or more counts in a multi-count accusatory pleading requires no leap in logic, since there are in legal effect as many “actions” as there are counts or charges. (§ 954 [different counts can be tried separately]; People v. Codina (1947) 30 Cal.2d 356, 361 [“each count must stand upon its own merit and be weighed separately in its disposition”].)
But to hold that section 1385 contemplates “dismissal” of a single word in a count, as defendant asks us to do here, would require a gigantic leap in logic, a leap that nothing in the statutory language or the case law construing that language enables us to make. A single word describing the controlled substance defendant illegally possessed and used is not an “action” as the Hernandez court construed that term for purposes of section 1385. (Hernandez, supra,22 Cal.4th at p. 521.) Nor is it a charge or count. Black’s Law Dictionary defines “charge” as “[a] formal accusation of an offense as a preliminary step to prosecution —Also termed criminal charge.” (Black’s Law Dict. (9th ed. 2009) p. 265.) It defines “count” as “the statement of a distinct claim,” which, in turn, it defines as “[t]he aggregate of operative facts giving rise to a right enforceable by a court....” (Id. at pp. 281, 401.) The word “methamphetamine” is not itself “the aggregate of operative facts” that gives rise to the People’s case against defendant. (See Polk, supra, 61 Cal.2d at p. 220, 226, 229.)
It is true, as defendant points out, that section 1385 has been construed to authorize the dismissal of certain allegations. In Burke,the California Supreme Court recognized that section 1385 extends to allegations that affect sentencing, holding that “[t]he power to strike or dismiss the proceeding as to a prior conviction is within the power referred to in Section 1385 of the Penal Code.” (People v. Burke (1956)47 Cal.2d 45, 51 (Burke), italics added.) Reasoning that “[t]he authority to dismiss the whole includes, of course, the power to dismiss or ‘strike out’ a part,” the Burke court affirmed the trial court’s striking of a prior misdemeanor conviction allegation “ ‘for the purpose of sentencing’ only.” (Ibid.) The court explained that “[t]he procedure of ‘striking,’ or setting aside or dismissing, a charge of a prior conviction (or any of multiple counts or allegations of an indictment or information) at the time of sentence is not expressly provided for by statute but it is commonly used in trial courts, not only where the prior conviction has not been legally established, but also where the fact of the conviction has been shown but the trial court has concluded that ‘in the interest of justice’ defendant should not be required to undergo a statutorily increased penalty which would follow from a judicial determination of that fact.” (Burke, at p. 50.) Thus, the Burke court’s recognition that section 1385 gives the trial court discretion to dismiss certain allegations was limited to allegations with penal consequences.
Limiting the reach of section 1385 in this way advances the purpose of striking the allegation. “The very purpose of striking a sentencing allegation under section 1385 is to effectuate the decision that ‘ “in the interest of justice” defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact.’ ” (People v. Superior Court (Romero) (1996)13 Cal.4th 497, 524, fn. 11 (Romero), citing Burke, supra, 47 Cal.2d at p. 50.) California Supreme Court cases since Burke confirm this limitation. In People v. Williams (1981) 30 Cal.3d 470, 489, superseded by statute as stated in People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, the court held that trial courts have discretion “to dismiss special circumstance findings in order to make it possible for a person to be eligible for parole.” In People v. Marsh (1984) 36 Cal.3d 134, 143, the court held that ransom and bodily harm findings requiring an enhanced sentence could be stricken to make the defendant eligible for referral to the California Youth Authority. In People v. Thomas (1992) 4 Cal.4th 206, 210, 214, the court held that trial courts retain their traditional discretion to strike sentencing enhancements “absent a clear legislative direction to the contrary.” In Romero, the court held that trial courts have discretion to reduce a defendant’s sentence by striking prior conviction allegations in cases arising under the “Three Strikes” law. (Romero, supra,13 Cal.4th at p. 530.) But the court has refused to expand the reach of section 1385 beyond allegations that affect sentencing. (In re Varnell (2003) 30 Cal.4th 1132, 1135, 1139 [section 1385 does not authorize the “dismissal” of unalleged factual circumstances making defendant ineligible for Proposition 36 treatment].)
The word “methamphetamine” bears no resemblance to the sentence-affecting allegations the high court has held are within a trial court’s section 1385 power to dismiss. Its appearance in the charging document does not trigger a penal consequence, nor does it render defendant ineligible for Proposition 36 drug treatment. Because excising the word from the charging document will not affect her sentence, to do so would be inconsistent with “[t]he very purpose” of dismissing an allegation under section 1385. (Romero, supra,13 Cal.4th at p. 524, fn. 11.) It follows that the word “methamphetamine” is not an “action” within the meaning of section 1385.
The cases defendant cites do not compel a different conclusion. Her assertion that Orin authorizes the dismissal of “entire charges and portions of a charge, including minor factual allegations comprising a small part of a charge” is untenable. In that case,the court reversed the trial court’s dismissal of two counts in a three-count information, holding that the trial court’s failure to set forth reasons for the dismissal rendered its order invalid, and the dismissal was not in any event in furtherance of justice. (Orin, supra,13 Cal.3d at p. 951.) We find nothing whatsoever in Orin to support an argument that section 1385 authorizes the dismissal of “minor factual allegations comprising a small part of a charge.”
Defendant’s reliance on this court’s decision in Orabuena is similarly misplaced. In that case,defendant pleaded guilty to three counts: possessing and being under the influence of methamphetamine and driving with a suspended license. (Orabuena, supra,116 Cal.App.4th at p. 89.) His conviction on the suspended license count made him ineligible for sentencing under Proposition 36’s alternative scheme. (Orabuena,at p. 91; § 1210.1, subd. (b).) Placed on formal probation with a requirement that he serve 180 days in the county jail, he argued on appeal that the trial court erred in failing to dismiss the suspended license count “in furtherance of justice” under section 1385. (Orabuena,at p. 92.) This court reversed, holding that the disqualifying misdemeanor conviction “meets the definition of an ‘action’ under section 1385, in that it is part of the criminal action filed against defendant.” (Orabuena,at p. 95.) The court further held that it saw “nothing in Proposition 36 or the statutes that implement Proposition 36 that limits the court’s power of dismissal under section 1385.” (Ibid.) It remanded the case to permit the trial court to exercise its discretion, expressly limiting its opinion “to the conclusion that a trial court has the authority under section 1385 to dismiss a misdemeanor [conviction] not related to the use of drugs that would otherwise make a defendant ineligible for Proposition 36 treatment.” (Orabuena, at p. 100.) Orabuena says nothing about a court’s power to dismiss a single word from a charging document.
Defendant emphasizes this court’s statement in Orabuena that “[a] court should not interpret a statute as eliminating the court’s power under section 1385 absent a clear legislative direction to that effect.” (Orabuena, supra,116 Cal.App.4th at p. 95.) Her reliance on the principle the Orabuena court’s statement embodies is misplaced. Whether Proposition 36 or some other statute eliminates a trial court’s power to dismiss “in furtherance of justice” is irrelevant where, as here, defendant cannot cross section 1385’s threshold requirement that the subject of the dismissal be an “action.” We conclude the trial court correctly ruled that section 1385 did not authorize it to grant the relief defendant requested. Our conclusion makes it unnecessary for us to reach defendant’s remaining arguments.
III. Disposition
The order of probation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.
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