Opinion
Previously published at 5 Cal.App.4th 617
Review Granted July 9, 1992.
Review transferred to the Court of Appeal Feb. 18, 1993.
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Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., John D. Conley, Asst. Dist. Atty., Kathleen M. Harper and E. Thomas Dunn, Jr., Deputy Dist. Attys., for plaintiff and appellant.
Phillip I. Bronson, Sherman Oaks, under appointment by the Court of Appeal, for defendant and respondent.
OPINION
CROSBY, Acting Presiding Justice.
Does the statutory mandate of Penal Code section 1170.1, subdivision (d) for imposition of an additional prison term for personal use of a firearm (Pen.Code, § 12022.5) abrogate a sentencing court's traditional discretion under Penal Code section 1385 to strike the enhancement? No.
We reach the same conclusion in a companion case. (People v. Prieto (1992) 5 Cal.App.4th 623, 6 Cal.Rptr.2d 921.)
I
On January 27, 1991, Larry Bill Ramirez divested a victim of four dollars in a gas station robbery and was immediately apprehended. He admitted guilt less
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than three weeks later. The superior court imposed the three-year midterm for second degree robbery and stayed sentences on the companion charge of carrying a loaded firearm (Pen.Code, § 654) and enhancements for use of a firearm and a prior felony conviction.
The district attorney argues the stay of the firearm enhancement was the functional equivalent of striking it, and we agree. (People v. Santana (1986) 182 Cal.App.3d 185, 191, 227 Cal.Rptr. 51.) He contends, however, that subdivision (d) of Penal Code section 1170.1 overrides a trial court's statutory power to strike firearm use enhancements "in furtherance of justice" (Pen.Code, § 1385).
The form abstract of judgment used here does not differentiate between staying and striking enhancements.
Penal Code section 1385 provides, "(a) The 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. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667."
Courts of Appeal have not agreed on the question, and the Supreme Court has agreed to resolve it. (People v. Thomas (1992) 2 Cal.App.4th 533, 3 Cal.Rptr.2d 55 [review granted Apr. 2, 1992 (S025251) ]; see also People v. McMahan (1992) 4 Cal.App.4th 205, 6 Cal.Rptr.2d 44). In our view, however, the precise legal issue before us was set to rest by the Supreme Court in People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, , in the context of the habitual criminal statute (Pen.Code, § 667). Nothing in Penal Code section 1170.1 allows this court to deviate from the Supreme Court's analysis in Fritz, and our rejection of the district attorney's arguments is compelled. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321.)
II
The issue confronting the Supreme Court in Fritz was "whether a trial court, in sentencing a defendant who has previously been convicted of a 'serious felony' within the meaning of Penal Code section 667, retains discretion to strike the prior conviction in furtherance of justice under section 1385." (People v. Fritz, supra, 40 Cal.3d at pp. 228-229, 219 Cal.Rptr. 460, .) The court concluded it did: "[T]he significance of the majority opinion in is that--coming on the heels of this court's decision in People v. Tanner (1979) 24 Cal.3d 514 --it sent an unmistakable
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signal to drafters of sentencing provisions of the need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended. Williams explains that absent a clear expression of legislative intent in this regard, a sentencing statute will not be construed to abrogate a trial court's general section 1385 power to strike. (30 Cal.3d at pp. 483-485, 489, 179 Cal.Rptr. 443, [italics added].) [¶] Both of the provisions on which the People rely as having eliminated the trial court's section 1385 power to strike serious felonies--section 667 and article I, section 28, subdivision (f)--were drafted shortly after the Williams decision and were enacted by the voters as part of Proposition 8 in the June 1982 election. Neither section, however, contains any express language indicating that it was intended to eliminate a trial court's section 1385 power with respect to the serious felony enhancement adopted in section 667.... Although section 667 does contain mandatory language--'[a]ny person convicted of a serious felony ... shall receive ... a five-year enhancement for each such prior conviction'--Williams and plainly hold that such language alone is not sufficient to eliminate a trial court's power to strike." (People v. Fritz, supra, 40 Cal.3d at pp. 230-231, 219 Cal.Rptr. 460, , fns. omitted.)
The Legislature's reaction to Fritz was swift. Less than six months after the Supreme Court's opinion appeared, an amendment to Penal Code section 1385 became effective: "(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (See fn. 3.)
With the Fritz analysis in mind, we turn to the two sentencing statutes before us: Penal Code sections 12022.5, subdivision (a) and 1170.1, subdivision (d). Both require imposition of additional, consecutive sentences for individuals convicted of personal use of a firearm in the commission or attempted commission of a felony. But, as the Supreme Court has long held, a sentencing mandate alone has no effect on the court's authority under section 1385 to strike an enhancement in the interest of justice. There must be "clear language eliminating a trial court's section 1385 authority whenever such elimination is intended." (People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, .) That has never occurred in the context of a section 12022.5 firearm use enhancement. Accordingly, courts retain the discretion under Penal Code section 1385 to strike those enhancements in the interest of justice.
Fritz' position on this point eviscerates the district attorney's argument that section 1170.1, subdivision (d) is "a specific provision [that] controls the general provision of Penal Code section 1385 and provides the exclusive means for a court to strike a [section] 12022.5 firearm use enhancement."
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III
The foregoing provides all the necessary analysis. Nevertheless, the district attorney insists the legislative intent to eliminate all discretion to strike firearm use enhancements, even in the interest of justice, is so pervasive that a result other than reversal constitutes a violation of the constitutional guarantee of separation of powers. (Cal. Const., art. III, § 3.) He is incorrect.
Former Penal Code section 1170.1, subdivision (h) authorized trial courts to strike a firearm use enhancement where "circumstances in mitigation" justified that action. This statutory power was eliminated by the Legislature effective January 1, 1990. (Stats.1989, c. 1044, § 1, p. 3217.) The Legislative Counsel's Digest to that bill explained, "(1) Existing law relating to sentencing authorizes a court to strike the additional enhancement involving the personal use of a firearm in the commission or attempted commission of a felony.... [¶] This bill would delete that authorization." The only pertinent change in the accompanying legislation was the elimination of section 12022.5 from the list of enhancements that could be stricken if mitigating circumstances were demonstrated. (Pen. code, § 1170.1, subd. (h).) The district attorney contends this action evidenced the Legislature's intent to end the discretionary authority provided in section 1385. One Court of Appeal has agreed with this position (People v. Thomas, supra, 2 Cal.App.4th at p. 535, 3 Cal.Rptr.2d 55); one has not (People v. McMahan, supra, 4 Cal.App.4th at p. 211, 6 Cal.Rptr.2d 44). We think McMahan is correct.
In our view, the district attorney comes closer to the mark when he notes the elimination of former subdivision (g) of Penal Code section 12022.5. That subdivision disappeared effective January 1, 1991 (Stats.1990, c. 41, § 3). It provided, "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancement provided in subdivision (c) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition." This subdivision was a reiteration of the court's longstanding authority under section 1385 to accomplish the same result. Thus, it is indicative of an intent by the Legislature to curtail statutory discretion.
Nevertheless, we do not find the elimination of Penal Code section 12022.5, subdivision (g) conclusive as an implied modification of section 1385. The reason is this: The year before the 1990 amendment to section 12022.5, the Attorney General provided the Chairman of the Assembly Public Safety Committee with his opinion concerning proposed legislation in this area. The Attorney General's March 23, 1989 letter stated in part,
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"Section 1170.1, providing the procedures for imposing sentence, expressly authorizes the court to strike the enhancement in section 12022.5 for use of a firearm if the court finds circumstances in mitigation and states its reason on the record. [The pending bill] deletes the court's authority to strike the new, increased use enhancement of section 12022.5. [¶] The bill does not, however, impose the same restriction upon the court's general authority under section 1385 to dismiss actions 'in furtherance of justice.' Given the length of the proposed enhancement, courts will probably seek to strike it in certain cases. The result would ironically mean less punishment than is available under present law. If the Legislature wishes to make the new enhancement truly mandatory, then it should also amend section 1385." (Italics added.) Despite this advice and People v. Fritz, supra, 40 Cal.3d 227, 219 Cal.Rptr. 460, , the Legislature has yet to amend section 1385 as it did in the wake of Fritz. Accordingly, this court has no choice but to find that the discretion under that section in the case of firearm use enhancements has not been curtailed.
Judgment affirmed.
WALLIN and SONENSHINE, JJ., concur.