Supreme Court of California Justia
Citation 46 Cal. 4th 143, 205 P.3d 279, 92 Cal. Rptr. 3d 370

People v. Bonnetta

Filed 4/27/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S159133
v.
Ct.App.
1/2
A115732
THOMAS BONNETTA et al.,
Contra Costa County
Defendants and Respondents. )
Super. Ct. No. 050516658
___________________________________ )

Penal Code section 1385, subdivision (a) provides in relevant part: “The
judge . . . 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.”1 The discretion thereby conferred on the trial courts includes the

1
Penal Code section 1385 reads in its entirety:
“(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.

“(c)(1) If the court has the authority pursuant to subdivision (a) to strike or
dismiss an enhancement, the court may instead strike the additional punishment
for that enhancement in the furtherance of justice in compliance with subdivision
(a).

“(2) This subdivision does not authorize the court to strike the additional
punishment for any enhancement that cannot be stricken or dismissed pursuant to
subdivision (a).”
1


discretion to dismiss or strike an enhancement in the furtherance of justice.
(People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504; People v. Thomas
(1992) 4 Cal.4th 206, 209.) But whether the decision is to dismiss the entire
action or, as here, only an enhancement allegation, Penal Code section 1385
requires that the reasons for the dismissal be set forth “in an order entered upon
the minutes.” (Id., subd. (a).) Here they were not.
A century of judicial decision, looking to the Legislature’s intent in
enacting Penal Code section 1385, has construed its provisions to be “mandatory,”
so that an order of dismissal is ineffective in the absence of a written statement of
reasons entered upon the minutes. Despite the multitude of decisions adopting this
construction, defendants contend section 1385 actually means something else.
They invite us to adopt an interpretation that will preserve an order of dismissal
entered without a written statement of reasons entered upon the minutes if the
appellate court is able to discern the trial court’s reasoning from some other
portion of the record. Defendants’ construction has some appeal, particularly
where, as here, the trial court’s reasons unambiguously appear in the transcript of
the oral proceedings. Nonetheless, that the settled meaning of section 1385 in
some instances renders compliance with its mandate inefficient does not justify the
conclusion that the Legislature that enacted it intended something different,
particularly when valid reasons existed and continue to exist for the long-standing
interpretation. We also reject defendants’ argument that the district attorney
waived the error by failing to inspect the written record after the hearing to ensure
that the trial court had complied with section 1385’s requirements.
We therefore affirm the judgment of the Court of Appeal reversing the
orders of dismissal. However, because the Court of Appeal made no further order,
defendants currently stand convicted of all charges and enhancements, a result at
odds with both the trial court’s evident intent and defendants’ understanding that
2
their admission of guilt would lead to dismissal of the enhancements. We
therefore remand the matter to the Court of Appeal with directions to allow the
trial court either to correct the error by again ordering dismissal, setting forth its
reasons in an order entered upon the minutes, or to reconsider its decision and take
appropriate action including, if necessary, proceeding as if the order had not been
entered in the first instance.
BACKGROUND
On July 8, 2004, defendant Thomas Bonnetta was a passenger in a car
stopped by a deputy sheriff. Behind Bonnetta’s seat, the deputy found two cans of
lye, a substance used in manufacturing methamphetamine. After learning
Bonnetta was on parole, the deputy conducted a parole search of a residence
Bonnetta shared with defendant Michael Claude Wilen. That search and a later
one conducted pursuant to a warrant led to the discovery of materials, equipment,
and documents suggesting defendants were involved in an ongoing operation for
the manufacture and sale of methamphetamine. One of the items seized was a
five-gallon jug filled with a bilayered liquid that when tested indicated the
presence of methamphetamine. Bonnetta told investigating officers he was
“pulling pills,” a reference to the act of “pulling” pseudoephedrine from cold
medication.
Bonnetta and Wilen were jointly charged with manufacturing
methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing
components to manufacture methamphetamine (id., § 11383, former subd. (c)(1)),
possessing specified chemicals with the intent to manufacture methamphetamine
(id., § 11383, former subd. (g)), and possessing methamphetamine for sale (id.,
§ 11378). Wilen was charged additionally with separate counts of possessing
components to manufacture methamphetamine and possessing laboratory
3
glassware or apparatus with an intent to manufacture methamphetamine (id.,
§§ 11383, former subd. (g), 11104.5).
The information also included numerous allegations that, if found true,
would support or require enhancements to any terms of imprisonment imposed
upon judgments convicting defendants of the charged offenses. It was alleged the
substance defendants used in manufacturing methamphetamine exceeded three
gallons of liquid by volume or one pound of solid substances by weight, an
allegation that if true supports a three-year enhancement under Health and Safety
Code section 11379.8, subdivision (a)(1). It was alleged Bonnetta had suffered a
number of prior drug-related convictions, each supporting a three-year
enhancement under Health and Safety Code section 11370.2, subdivision (c). It
was alleged that two of those convictions, and an additional conviction for being a
felon in possession of a firearm, were felonies for which Bonnetta had served a
term in prison so that one-year enhancements for each conviction were required by
Penal Code section 667.5, subdivision (b). And it was alleged Wilen had suffered
one prior drug-related felony conviction supporting Health and Safety Code
section 11370.2’s three-year enhancement and had suffered seven prior
convictions for purposes of one-year enhancements required by Penal Code
section 667.5, subdivision (b).
All told, Bonnetta faced a maximum sentence of 29 years and Wilen a
maximum sentence of 22 years in state prison. The trial court indicated that if
each defendant would enter a plea of guilty to all charges and admit all the
enhancements, it would sentence Bonnetta to no more than eight years’
imprisonment and Wilen to no more than six years eight months’ imprisonment.
Defendants were willing, but the prosecutor objected, asserting the court could
arrive at the proposed sentences only by striking most of the enhancements, which
in the prosecutor’s opinion would be an abuse of discretion. Despite the
4
prosecutor’s objections, the court accepted defendants’ pleas and sentenced them
as indicated.
As the prosecutor had foreseen, the court reached the agreed-upon terms by
striking most of the enhancements. The court struck the allegations concerning
the quantity of the substance in the jug found at defendants’ residence, stating that
after reviewing the preliminary hearing testimony it could not find beyond a
reasonable doubt the prosecutor would be able to prove the jug contained more
than three gallons of liquid by volume or one pound of solid substance by weight.
The court imposed a three-year term for a drug-related conviction suffered by
Bonnetta in 2000, but struck all of Bonnetta’s other drug-related enhancements,
explaining they were old and remote or that it was striking them in the interest of
justice, to achieve parity in sentencing, and to facilitate the speedy resolution of
the matter. The court imposed a one-year term for one of Wilen’s prior
convictions, but struck all the other allegations of prior convictions, explaining
they were remote. The court’s decision was reduced to an order entered upon the
minutes, but the written order did not set forth any of the court’s reasons for
striking the enhancements.
The People appealed, contending the trial court had abused its discretion by
striking the enhancements and that the orders were ineffective because the court
had not set forth its reasons for the dismissals in an order entered upon the
minutes. The Court of Appeal agreed and reversed the orders striking the
additional terms of imprisonment required or authorized by the enhancement
allegations.
DISCUSSION
I.
Penal Code sections 1385 and 1386, enacted in 1872, codify California’s
rejection of the English rule of nolle prosequi, under which the prosecutor alone
5
had authority to discontinue a prosecution, in favor of granting sole authority to
the courts to dismiss actions in furtherance of justice.2 (See People v. Tenorio
(1970) 3 Cal.3d 89, 92-93.) “The court, for the purposes of the order of dismissal,
takes charge of the prosecution, and acts for the people. It holds the power to
dismiss, as the attorney-general in England holds the power to enter a nolle
prosequi, by virtue of the office and the law; and it is exercised upon official
responsibility.” (People v. More (1887) 71 Cal. 546, 547.) But in granting
authority to a court to dismiss “in furtherance of justice,” the Legislature “required
the court to spread upon the minutes for public reference the reason for its action
in dismissing a felony prosecution.” (People v. Romero (1936) 13 Cal.App.2d
667, 670.) “From the standpoint of the public welfare, potent arguments suggest
themselves as to the wisdom of such a requirement. Indeed, the legislature has
gone so far as to guard against the likelihood of the court doing violence to the
interest of justice by providing that such order can be made only ‘in the
furtherance of justice’. The obvious function of section 1385 of the Penal Code is
to impose a duty on the court, but with certain limitations and conditions: the
‘limitation’ that such dismissal must be in furtherance of justice, and the
‘condition’ that the reasons for the dismissal must be entered upon the minutes.”
(Id. at pp. 670-671.)
The cases have long held a dismissal without a written statement of reasons
is invalid and of no effect regardless of the reviewing court’s belief that the
reasons for the dismissal can be discerned from other portions of the record. Thus,

2
Penal Code section 1386 provides: “The entry of a nolle prosequi is
abolished, and neither the Attorney General nor the district attorney can
discontinue or abandon a prosecution for a public offense, except as provided in
Section 1385.”
6


100 years ago, in People v. Disperati (1909) 11 Cal.App. 469, the court stated:
“We have no authority to disregard this requirement or to hold that it is merely
directory.” (Id. at p. 476.) “Here there is no pretense that the order of the court
recites the reasons upon which it was based. It is true the record shows the
grounds upon which the motion was made by the district attorney, but nothing in
the order shows that these grounds were, or any of them was, the basis for the
action of the court.” (Id. at p. 477.)
Numerous cases have taken the same view, emphasizing that the public
declaration inherent in a written order is a purposeful restraint, that Penal Code
section 1385’s requirements are not directory and may not be disregarded, and that
a reporter’s transcript showing the trial court’s motivation is not enough; the
minutes must reflect the reason. (E.g., People v. Superior Court (Pipkin) (1997)
59 Cal.App.4th 1470, 1477; People v. Andrade (1978) 86 Cal.App.3d 963, 974-
975; People v. Ritchie (1971) 17 Cal.App.3d 1098, 1104-1105; People v. Beasley
(1970) 5 Cal.App.3d 617, 637.) This court has not been silent. “ ‘The statement
of reasons is not merely directory, and neither trial nor appellate courts have
authority to disregard the requirement. It is not enough that on review the
reporter’s transcript may show the trial court’s motivation; the minutes must
reflect the reason “so that all may know why this great power was exercised.” ’ ”
(People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531; accord, People v.
Williams (1998) 17 Cal.4th 148, 159.)3
The Court of Appeal, although reversing the dismissals here under the
compulsion of stare decisis, urged the adoption of a new rule allowing a reviewing

3
See also People v. Hunt (1977) 19 Cal.3d 888, 897; People v. Orin (1975)
13 Cal.3d 937, 944-945; People v. Superior Court (Howard) (1968) 69 Cal.2d
491, 503, footnote 7.
7


court to examine the transcripts of the oral proceedings for a trial court’s reasons
for its decision to dismiss, so that a court’s failure to comply with the letter of
Penal Code section 1385 might be deemed harmless error under article VI, section
13 of the California Constitution. In support, defendants point out that the
constitutional provision was added in 1911, postdating the enactment of section
1385 and the Disperati court’s construction of the statute’s requirement of a
statement of reasons.
There is little reason, however, to suppose the court in People v. Disperati,
supra, 11 Cal.App. 469, would have reached a different conclusion had
California’s Constitution at that time included the harmless error standard. The
court condemned the practice of failing to state reasons, warning of the abuse that
“is likely to follow” and speaking of the “invasion of the authority of a co-ordinate
branch of the government.” (Disperati, at p. 477.) Such language is wholly
inconsistent with the concept of harmless error. Moreover, while Disperati was
decided two years before the harmless error standard was added to the state’s
Constitution, the vast majority of the decisions holding Penal Code section 1385’s
requirement to be mandatory came later, still emphasizing that the harm was not
that some injustice had taken place in the action under review, but that the practice
could lead to abuse. As we said in People v. Orin, supra, 13 Cal.3d at page 944:
“The underlying purpose of this statutory requirement is ‘to protect the public
interest against improper or corrupt . . . dismissals’ and to impose a purposeful
restraint upon the exercise of judicial power . . . .” (See also, e.g., People v.
Beasley, supra, 5 Cal.App.3d at p. 637 [“ ‘A judge dismissing criminal charges
without trial, upon his own motion, must record his reasons so that all may know
why this great power was exercised, and such public declaration is indeed a
purposeful restraint, lest magistral discretion sweep away the government of
laws’ ”].)
8
While the Legislature has amended Penal Code section 1385 on several
occasions, it has never altered the language requiring that the reasons for a
dismissal be set forth in an order entered upon the minutes.4 Although the
absence of legislative response to a judicial construction of a statute will not be
deemed an implied ratification of that construction, when a statute has been
construed by the courts and the Legislature thereafter reenacts the statute without
changing the interpreted language, a presumption is raised that the Legislature was
aware of and has acquiesced in that construction. (People v. Leahy (1994) 8
Cal.4th 587, 604; People v. Escobar (1992) 3 Cal.4th 740, 750-751; People v.
Bouzas (1991) 53 Cal.3d 467, 475.)
Nevertheless, because the Legislature has not expressly endorsed the
judicial construction of Penal Code section 1385, theoretically we are not
precluded from reversing course; we could conclude that despite the venerability
of the judicial construction and the Legislature’s acquiescence, the Legislature
when enacting section 1385 intended its requirements to be merely directory. But
that California in 1911 adopted the doctrine of harmless error does not make out a
compelling case for reconsidering the Legislature’s intent in 1909. The task of the
courts is to determine what the Legislature intended at the time it enacted a statute,
not to speculate on what the Legislature might have done had it enacted the statute

4
A 1951 amendment substituted “prosecuting attorney” for “District
Attorney,” authorized the dismissal of an “action” instead of an “action or
indictment,” and added the sentence: “No dismissal shall be made for any cause
which would be ground of demurrer to the accusatory pleading.” (Stats. 1951,
ch. 1674, § 141, p. 3857.) A 1980 amendment substituted “judge or magistrate”
for “court.” (Stats. 1980, ch. 938, § 7, p. 2968.) A 1986 amendment placed what
had been the entire section into a subdivision (a) and added subdivision (b).
(Stats. 1986, ch. 85, § 2, p. 211.) And a 2000 amendment added subdivision (c).
(Stats. 2000, ch. 689, § 3.)
9


at a later time when other factors were present. In short, we are not persuaded the
historic construction of Penal Code section 1385 was wrong. If the Legislature
thinks otherwise, it may amend the section to conform to its view of whether the
section’s requirement should be mandatory.
Having concluded Penal Code section 1385 states a mandatory
requirement, we have no reason to consider whether a violation of its provisions
might be deemed harmless. Nonetheless, in response to the argument that there is
no logical reason to hold invalid a dismissal if the trial court had discretion to
grant it, we find it useful again to note that the purpose for the requirement is to
allow review of the trial court’s reasons for ordering dismissal. “[W]e are dealing
not with a pure question of law but with the exercise of a trial court’s discretion. It
would be incongruous for an appellate court, reviewing such order, to rely on
reasons not cited by the trial court. Otherwise, we might uphold a discretionary
order on grounds never considered by, or, worse yet, rejected by the trial court.
And, if the appellate court is free to scour the record for other reasons to support
the dismissal, or accept reasons suggested by the defendant, there was no reason
for the Legislature to require that the lower court record the basis for the dismissal
in the first instance.” (People v. Bracey (1994) 21 Cal.App.4th 1532, 1542, fn.
omitted.) Of course there is little reason to fear that a trial court’s abuse of
discretion will go undetected when, as here, the reasons for a dismissal are clearly
stated during the oral proceedings and have become a part of the reporter’s
transcript. However, experience suggests the more common practice is for the
court and counsel to engage in a wide-ranging discussion, before the court,
without clearly identifying the points it found persuasive, states its decision. And
although a rule might be stated that would allow the reviewing court to uphold the
trial court’s order if, but only if, it finds the trial court’s reasons to be clearly
articulated, or if any and all of the reasons mentioned would justify dismissal, such
10
a rule, while reducing the trial court’s burden, would increase that of the appellate
courts without eliminating the possibility the reviewing court would misidentify
the specific reason or reasons for the trial court’s ruling.
II.
Defendants also argue the district attorney waived the error by failing to
remind the court of the necessity of a written order and later failing to take
corrective action. They cite People v. Scott (1994) 9 Cal.4th 331, where we held
that claims a trial court failed to properly make or articulate its discretionary
sentencing choices, including the failure to state any reason, are waived unless
challenged at the time of sentencing. (Id. at p. 353.) As we said there: “Although
the court is required to impose sentence in a lawful manner, counsel is charged
with understanding, advocating, and clarifying permissible sentencing choices at
the hearing. Routine defects in the court’s statement of reasons are easily
prevented and corrected if called to the court’s attention.” (Ibid.) But because a
minute order is entered by the court only after the hearing, the district attorney
cannot easily ensure that it is entered or detect its absence. Moreover, the failure
to set forth the reasons for a dismissal in an order entered upon the minutes is not a
routine defect in sentencing. It is a violation of a mandatory requirement put in
place to benefit the public by assuring that a court through neglect or abuse of
discretion has not misused the “great power” of dismissal. (See People v.
Superior Court (Romero), supra, 13 Cal.4th at p. 531.) “A person may waive the
advantage of a law intended for his or her benefit [citation], but ‘a law established
for a public reason cannot be waived or circumvented by a private act or
agreement’ [citations].” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040,
11
1048.) Even less should a party’s inaction waive a statutory requirement
established for the public benefit.5
III.
The People, under authority of People v. Superior Court (Romero), supra,
13 Cal.4th 497, assert a reversal for the trial court’s failure in this case to enter an
order upon the minutes setting forth its reasons for the dismissals requires remand
for a new sentencing hearing. In Romero, we rejected the argument that a trial
court lacks discretion under the three strikes law (Pen. Code, § 667, subds. (b)-(i))
to, on its own motion, strike prior felony conviction allegations. (Romero, at pp.
529-530.) However, we described the limited nature of the court’s discretion (id.
at pp. 530-531) and ordered the matter remanded to the trial court to allow the
defendant to withdraw his plea (id. at p. 532). Because the trial court not only had
failed to state its reasons for striking the prior-felony-conviction allegations but
also had acted without benefit of this court’s guidance concerning the extent of its
discretion, it was necessary to set the proceedings aside so that the defendant and
the court might proceed on a clean slate. That is not the situation here, as the trial
court was fully aware of the limitations on its discretion when it dismissed the
enhancement allegations, but simply failed to articulate its reasons for doing so in
a written order.

5
It nonetheless is true that a trial court’s failure to set forth its reasons for a
dismissal on the written record will not lead to reversal when it implements a plea
bargain between the district attorney and the defendant. As we recognized in
People v. Orin, supra, 13 Cal.3d at page 945, footnote 10, the district attorney
would not appeal from such an order. And because the purpose of the statutory
requirement is to protect the public, not the defendant, it has been held that a
defendant may not complain that the requirement has not been met. (People v.
Fox
(1954) 126 Cal.App.2d 560, 566-567; see People v. Silva (1965) 236
Cal.App.2d 453, 455.)
12


Nonetheless, as the trial court’s order of dismissal is ineffective, the matter
must be remanded at least for the purpose of allowing the trial court to correct the
defect by setting forth its reasons in a written order entered upon the minutes.
Alternatively, 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. Judicial economy is furthered by allowing the trial court to correct
what, upon reconsideration and reflection, it perceives to have been an
unwarranted dismissal, or to consider if a dismissal should be ordered for some
new or different reason. In such cases, the court must also have the power to take
action such as reconvening the sentencing hearing or allowing a defendant to
withdraw a plea entered on the understanding a count or an enhancement would be
dismissed. (See People v. Bradley (1998) 64 Cal.App.4th 386; People v. Superior
Court (Pipkin), supra, 59 Cal.App.4th at p. 1478.)
DISPOSITION
The cause is remanded to the Court of Appeal to enter judgment reversing
the judgments of conviction and, in turn, remand the matter to the trial court for
proceedings consistent with the views we have expressed herein.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
13




DISSENTING OPINION BY KENNARD, J.

Penal Code section 1385, subdivision (a), requires that the reasons for a
trial court’s dismissal of a criminal action “be set forth in an order entered upon
the minutes.” (All further statutory references are to the Penal Code.) This court
has said that this legislative directive is mandatory and that noncompliance results
in an automatic reversal of the trial court’s judgment. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 531; People v. Orin (1975) 13 Cal.3d 937, 944.)
Such reversal is required even when, as occurred here, the trial court’s reasons for
the dismissal, though not stated in a minute order, are expressed in open court and
recorded in a transcript of the proceeding. (People v. Superior Court (Romero),
supra, at p. 531; People v. Orin, supra, at p. 944, both citing two Court of Appeal
decisions, People v. Beasley (1970) 5 Cal.App.3d 617, 637; People v. Winters
(1959) 171 Cal.App.2d Supp. 876, 881-882.)1

1
In neither of these two decisions was this conclusion critical to the
outcome. At issue in People v. Superior Court (Romero), supra, 13 Cal.3d at page
531, was whether a trial court has the power to dismiss a “strike” allegation under
the “Three Strikes” law (§ 667, subds. (b)-(i)); tangential to that issue was this
court’s observation that such a dismissal was subject to review on appeal and
required automatic reversal if the reasons for the dismissal were not set forth in the
trial court’s minutes. And People v. Orin, supra, 13 Cal.3d at page 944, is
distinguishable because there this court was careful to note that the trial court’s
reasons for its dismissal of the charges were not reflected in the record of the
proceedings.
1


In this case, the Court of Appeal pointed out that strict adherence to this
rule can be a waste of judicial time and resources, and it asked this court to
reexamine the rule and to allow appellate courts to determine whether in a
particular case noncompliance with section 1385 can be harmless error. My
colleagues do not share those views. I do, as explained below.
I
Section 1385 was enacted by the Legislature in 1872. Back then, all but the
most trivial of trial errors were presumed to be prejudicial, resulting in reversals of
trial court judgments. (People v. Watson (1956) 46 Cal.2d 818, 834.) It is against
this backdrop that one should examine the Court of Appeal’s oft-cited decision in
People v. Disperati (1909) 11 Cal.App. 469, 476-477, which held that section
1385 imposed a mandatory duty on a trial court to state its dismissal reasons in a
minute order, and that failure to do so required reversal of the judgment. This
inflexible rule was reiterated in several decisions of the Courts of Appeal and this
court, which again does so today. (Maj. opn., ante, at pp. 7-8.)
Whatever legal justifications may have existed for this automatic reversal
rule at the time of the Court of Appeal’s decision in People v. Disperati, supra, 11
Cal.App. 469, those grounds no longer make sense. In 1911, just two years after
the Disperati decision, California’s voters amended the state Constitution to
preclude reversal in a criminal case for any error that was not prejudicial. (People
v. O’Bryan (1913) 165 Cal. 55, 66.) The amendment provided: “No judgment
shall be set aside, or new trial granted in any criminal case . . . for error as to any
matter of pleading or procedure, unless, after an examination of the entire cause
including the evidence, the court shall be of the opinion that the error complained
of has resulted in a miscarriage of justice.” (Cal. Const., former art. VI, § 4½,
2
added Oct. 10, 1911 and repealed Nov. 8, 1966.)2 Except for minor
modifications, this harmless error provision of California’s Constitution has
remained the same. (See Cal. Const., art. VI, § 13.) In holding that reversal is
invariably required for a trial court’s noncompliance with section 1385 — no
matter that the dismissal reasons, though not stated in a minute order are, as here,
recorded in the transcript of the proceeding — the majority pays no heed to
California’s constitutional directive that a judgment may be set aside only if “the
error complained of has resulted in a miscarriage of justice.”
The purposes for requiring a trial court to state its reasons for a dismissal
are (1) to promote judicial accountability so as to protect the public interest in not
allowing improper or corrupt dismissals (People v. Orin, supra, 13 Cal.3d at
p. 944), and (2) to facilitate appellate review (People v. Superior Court (Romero),
supra, 13 Cal.4th at p. 531). These goals are satisfied where, as here, the trial
court’s dismissal reasons are fully set forth in the court reporter’s transcript of the
proceeding, which is a public record that can be examined by any member of the
public desiring to see it, as well as by the reviewing court on appeal from the trial
court’s judgment. In these circumstances, the trial court’s failure to have a minute
order reflect its dismissal reasons is insignificant and therefore harmless error.
As the Court of Appeal pointed out, to require automatic reversal in those
cases in which the trial court’s reasons for dismissal are stated in the reporter’s
transcript but not in the minute order will waste judicial time and resources. In

2
Under federal law, automatic or per se reversal of a judgment is required
only for “structural error,” that is, error — such as the denial of counsel, the denial
of a jury, or the lack of an impartial judge — that cannot be assessed in the context
of other evidence in order to determine whether the error was prejudicial. (E.g.,
Arizona v. Fulminante (1991) 499 U.S. 279, 307-308; People v. Allen (2008) 44
Cal.4th 843, 870.)
3


those instances, automatic reversal requires further proceedings in the trial court
and may lead to another appeal. In light of the majority’s continued adherence to
the rule of automatic reversal for noncompliance with section 1385, the
Legislature may want to reexamine the need for this inflexible rule that utterly
ignores California’s constitutional directive that a judgment of a trial court can be
set aside only if “the error complained of has resulted in a miscarriage of justice.”
(Cal. Const., art. VI, § 13.)
II
Because of this court’s statements in People v. Superior Court (Romero),
supra, 13 Cal.4th 497, and in People v. Orin, supra, 13 Cal.3d 937, that
compliance with section 1385 is mandatory and that failure to comply is invariably
reversible error, the Court of Appeal here followed that directive, as it had to (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), thus refraining
from conducting a harmless error analysis. Hence the Court of Appeal did not
determine whether the trial court abused its discretion in dismissing the sentence
enhancement allegations. I would remand this case to the Court of Appeal so it
can perform such a review.
KENNARD,
J.
4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bonnetta
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 1315
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S159133
Date Filed: April 27, 2009
__________________________________________________________________________________

Court:

Superior
County: Contra Costa
Judge: Theresa J. Canepa

__________________________________________________________________________________

Attorneys for Appellant:

Robert J. Kochly, District Attorney, Dana L. Filkowski, Arvon J. Perteet and Greg W. Chambers, Deputy
District Attorneys, for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Steve Condie, under appointment by the Supreme Court, for Defendant and Respondent Thomas Bonnetta.

Violet Elizabeth Grayson, under appointment by the Supreme Court, for Defendant and Respondent
Michael Wilen.


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

Dana L. Filkowski
Deputy District Attorney
10 Douglas Drive, Suite 200
Martinez, CA 94553
(925) 636-2333

Steve Condie
11 Embarcadero West, Suite 140
Oakland, CA 94607
(510) 272-0200

Violet Elizabeth Grayson
270 Ninth Avenue
San Francisco, CA 94118
(415) 406-1512


Petition for review after the Court of Appeal affirmed in part and reversed in part judgments of conviction of criminal offenses. This case presents the following issue: Must an appellate court automatically reverse a trial court's order striking enhancements pursuant to Penal Code section 1385 because the trial court, although it stated its reasons for dismissal on the record, failed to enter the reasons upon the minutes, or can the error be found harmless?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 04/27/200946 Cal. 4th 143, 205 P.3d 279, 92 Cal. Rptr. 3d 370S159133Review - Criminal Appealclosed; remittitur issued

Parties
1Wilen, Michael Claude (Defendant and Respondent)
San Quentin State Prison
Represented by Violet Elizabeth Grayson
Attorney at Law
270 Ninth Avenue
San Francisco, CA

2The People (Plaintiff and Appellant)
Represented by Dana Lynn Filkowski-Calvert
Office of the Contra Costa County District Attorney
P.O. Box 670
900 Ward Street
Martinez, CA

3The People (Plaintiff and Appellant)
Represented by Attorney General - San Francisco Office
455 Golden Gate Avenue, Suite 11000
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

4The People (Plaintiff and Appellant)
Represented by Arvon Jacque Perteet
Office of the Contra Costa County District Attorney
P.O. Box 670
900 Ward Street
Martinez, CA

5Bonnetta, Thomas (Defendant and Respondent)
Represented by R. Stevens Condie
Attorney at Law
11 Embarcadero West, Suite 140
Oakland, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar
DissentJustice Joyce L. Kennard

Disposition
Apr 27 2009Opinion: Reversed

Dockets
Dec 18 2007Petition for review filed
  Michael Claude Wilen, defendant and respondent by Violet Elizabeth Grayson, CA-appointed counsel
Dec 18 2007Record requested
 
Dec 20 20072nd petition for review filed
  Thomas Bonnetta, defendant and respondent by Robert Stevens Condie, CA-appointed counsel
Jan 2 20082nd record request
  via email
Jan 4 2008Received Court of Appeal record
  file folder/briefs/accordian folder
Feb 13 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including March 19, 2008, or the date upon which review is either granted or denied.
Mar 12 2008Petition for review granted (criminal case)
  Moreno, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Mar 14 20082nd record request
 
Mar 14 2008Note:
 
Mar 25 2008Counsel appointment order filed
  Upon request of respondent Thomas Bonnetta for appointment of counsel, R. Stevens Condie is hereby appointed to represent respondent on the appeal now pending in this court. Respondent's brief on the merits must be served and filed on or before thirty (30 days from the date of this order.
Mar 25 2008Counsel appointment order filed
  Upon request of respondent Michael Wilen for appointment of counsel, V. Elizabeth Grayson is hereby appointed to represent respondent on the appeal now pending in this court. Respondent's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Apr 18 2008Request for extension of time filed
  to and including May 27, 2008, to file Respondent Bonetta's Opening Brief on the Merits by R. Steven Condie, Supreme Court Appointed Counsel.
Apr 24 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file both Respondents Bonnetta and Wilen's opening briefs on the merits is extended to and including May 27, 2008.
May 22 2008Opening brief on the merits filed
  Thomas Bonnetta, respondent by Steve Condie, Counsel
May 27 2008Request for extension of time filed
  for respondent Michael Wilen, requesting a 14 day extension, until June 10, 2008, to file the Opening Brief on the Merits, by V. Elizabeth Grayson, Counsel
May 29 2008Extension of time granted
  On application of appellant Michael Wilen and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 10, 2008.
Jun 6 2008Opening brief on the merits filed
  Appellant Michael Wilen by Violet Elizabeth Grayson, Supreme Court appointed counsel
Jun 12 2008Request for extension of time filed
  to and including August 4, 2008, to file Appellant's (People) Consolidated Answer Brief ont the Merits by Dana L. Filkowski, Deputy District Attorney, Contra Costa County
Jun 16 2008Extension of time granted
  On application of appellant (The People) and good cause appearing, it is ordered that the time to serve and file the Appellant's Consolidated Answer Brief on the Merits is extended to and including August 4, 2008.
Aug 1 2008Answer brief on the merits filed
  The People, respondent by Arvon J. Perteet, Deputy District Attorney
Aug 14 2008Request for extension of time filed
  for Michael Wilen, respondent, requesting a 30 day extension until September 18, 2008, to file the reply brief on the merits, by V. Elizabeth Grayson, Counsel
Aug 21 2008Reply brief filed (case not yet fully briefed)
  Respondent Thomas Bonetta by Steve Condie, Supreme Court appointed counsel
Aug 27 2008Extension of time granted
  On application of Respondent Michael Wilen and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including September 18,2008. No further extension is contemplated.
Sep 17 2008Reply brief filed (case fully briefed)
  Respondent Michael Wilen by Violet Elizabeth Grayson, Supreme Court Appointed Counsel
Nov 13 2008Compensation awarded counsel
  Atty Grayson
Dec 18 2008Compensation awarded counsel
  Atty Condie
Jan 6 2009Case ordered on calendar
  to be argued on Tuesday, February 3, 2009, at 9:00 a.m., in Sacramento
Jan 12 2009Application filed
  Application to divide oral argument time filed by Seve Condie and V. Wlizabeth Grayson, counsel for respondents. Asking to divide time equally between respondents Bonnetta and Wilen.
Jan 14 2009Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to respondent Bonnetta 15 minutes and respondent Wilen 15 minutes of respondents' 30-minute allotted time for oral argument is granted.
Feb 3 2009Cause argued and submitted
 
Apr 24 2009Notice of forthcoming opinion posted
 
Apr 27 2009Opinion filed: Judgment reversed
  The cause is remanded to the Court of Appeal to enter judgment reversing the judgments of conviction and, in turn, remand the matter to the trial court for proceedings consistent with the views we have expressed herein. Opinion by Werdegar, J. Joined by George, C.J., Baxter, Chin, Moreno, Corrigan, JJ. Dissenting Opinion by Kennard, J.
Jun 9 2009Remittitur issued
 
Jun 10 2009Compensation awarded counsel
  Atty Grayson
Jun 24 2009Compensation awarded counsel
  Atty Condie
Jul 13 2009Received:
  Acknowledgment of receipt for remittitur on 6-17-2009, signed for by Stacy Wheeler, Deputy Clerk, First Appellate District.

Briefs
May 22 2008Opening brief on the merits filed
 
Jun 6 2008Opening brief on the merits filed
 
Aug 1 2008Answer brief on the merits filed
 
Aug 21 2008Reply brief filed (case not yet fully briefed)
 
Sep 17 2008Reply 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
May 18, 2011
Annotated by brian murdock

(Opinion by J., Werdegar, C.J. George, Baxter, Chin, Corrigan and Moreno, JJ., concurring; J. Kennard dissenting)

Facts:
On July 8, 2004, defendant Thomas Bonetta was pulled over in a traffic stop by a deputy sherrif. The Sherrif found two cans of Lye, which is a powdered chemical used in the production of meth amphetamine. This evidence and evidence of Barrettas parole lead to subsequent searches of Bonnetta’s residence that he shared with the other defendant Michael Claude Wilen. Discovered is these searches was equipment and materials suggestive of an “ongoing operation” of the manufacturing of meth amphetamine. One item was a 5 gallon jug that tested for the presence of meth. Bonnetta admitted to “pulling pills” which is a slang term for distilling cold medication to harvest materials to create meth amphetamine.

Both defendants were charged jointly with manufacturing methamphetamine, possessing components to manufacture methamphetamine, possessing specific chemicals with the intent to manufacture meth amphetamine, and possessing methamphetamine for sale. Wilen was also charged with other counts of possessing equipment with intent to manufacture meth.

Several details if found true would support or require judgment enhancements if defendants were found guilty. The volume of substance found, as well as prior convictions are examples of such enhancement triggering offenses.

At trial the court indicated that should the defendants plead guilty to all charges and enhancements that their potential sentences of 29 years and 22 years would be capped at 8 years for Bonnetta and 6 years for Wilen. The defendants submitted the pleas and the court entered the judgment accordingly.

The court reasoned that the reasons for striking the enhancements was because the prior convictions were old and remote, the court wanted to facilitate a speedy resolution, and because they wanted to achieve parity in the sentencing. The court did not submit a written order explaining these reasons however.

Procedural History:
At trial, defendants Michael Claude Wilen and Thomas Bonnetta submitted pleas of guilty to all charges in relation to manufacturing of methamphetamine and admitted all enhancements. The court struck most of the enhancements per the deal and sentenced each to no more than 6 years and 8 years in prison respectively. On appeal, the appellate court reversed the orders of dismissal. The Court of Appeal made no further orders and thus the defendants remained convicted of all charges and enhancements.

Issue:
Issue 1: Does a dismissal without written statement violate Penal Code Section 1385
and if not can an appellate court discern the trial courts reasoning from another portion of the record?

Issue 2: Did the prosecution waive error by failing to ensure the court’s compliance with Penal Code Section 1385 or to raise an objection or complaint?

Holding:
Issue 1: Yes a dismissal without written statement does violate Penal Code Section 1385. Appellate Courts may not attempt to discern the trial court’s intention through other portions of the record.

Issue 2: No the prosecution did not waive error by failing to ensure the court’s compliance with Penal Code Section 1385 or to raise on objection or complaint.

Reasoning:
Penal Code Section 1385, subdivision (a) states that : “The judge ... 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.”

Penal Code Section 1385 does impose the additional requirement that the reasons for dismissal be set forth “in an order entered upon the minutes.” The reason for this requirement was articulated by the Supreme Court of California when they said “The underlying purpose of this statutory requirement is ‘to protect the public interest against improper or corrupt… dismissals’ and to impose a purposeful restraint upon the exercise of judicial power…” People v. Orin, 533 P.2d 193 (Cal. 1975) .

Further, here the Court thinks that it is not their place or another court’s place to attempt to discern meaning from other portions of the record however clear they may appear.

“[E]xperience suggests the more common practice is for the court and counsel to engage in a wide ranging discussion, before the court, without clearly identifying the points it found persuasive…such a rule …would increase (the burden) of the appellate courts without eliminating the possibility the reviewing court would misidentify the specific reason or reasons for the trial court’s ruling.” People v Bonetta, 46 cal.4th 143.

The defendants also argued that the district attorney waived the error by failing to remind the court of the written order requirement. The court rejects this contention for several reasons. First, the minute order is submitted by the court after the hearing, thus making it very difficult for the district attorney to monitor and follow up. Second, this type of mistake is not routine so to expect the prosecution to consistently monitor this flaw would be unreasonable. Finally, courts have found that when a law is establish with the primary purpose of ensuring justice for the public interest it cannot be waived. (see Bickel v. City of Piedmont, 946 P.2d 427 (Cal. 1997) )

Ruling:
Appellate Court ruling reversing the orders of dismissal is affirmed. The case is also remanded to allow the trial court to correct the error by filing a written reasoning for the dismissals in the minutes, or to reconsider its original decision.

Dissent:
Justice Kennard dissents from this opinion because he believes that the failure to submit the written order explaining the reasons for the dismissal amounts to a harmless error because the intent is clear in the record. Justice Kennard cites caselaw precluding reversal for any error that was not prejudicial. (see People v O’Bryan (1913) 165 Cal. 55, 66, 130 P. 1042).

Further, Kennard argues that the purposes of a trial court stating its reasons for dismissal is for a)judicial accountability, and b) for facilitating appellate review, both of which he believes are satisfied in this case.

Cases and references:
Penal Code Section 1385
Penal Code Section 667.5
Health and Safety Code 11379.8
Health and Safety Code 11370.2

People v Bonetta, 46 cal.4th 143.
People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996) People v. Scott, 885 P.2d 1040 (Cal. 1994)
People v. Orin, 533 P.2d 193 (Cal. 1975)
People v. Beasley, 85 Cal.Rptr. 501 (Cal.App. 1 Dist. 1970) Bickel v. City of Piedmont, 946 P.2d 427 (Cal. 1997)
People v. Leahy, 882 P.2d 321 (Cal. 1994)
People v. Hunt, 568 P.2d 376 (Cal. 1977)
People v. Tenorio, 473 P.2d 993 (Cal. 1970)
People v. Fox, 272 P.2d 832 (Cal.App. 1 Dist. 1954)
People v. Bradley, 75 Cal.Rptr.2d 244 (Cal.App. 2 Dist. 1998)
People v. Romero, 57 P.2d 557 (Cal.App. 2 Dist. 1936)
People v. Williams, 948 P.2d 429 (Cal. 1998)
People v. Thomas, 841 P.2d 159 (Cal. 1992)
People v. Escobar, 837 P.2d 1100 (Cal. 1992)
People v. Bouzas, 807 P.2d 1076 (Cal. 1991)
People v. Andrade, 150 Cal.Rptr. 662 (Cal.App. 2 Dist. 1978) People v. Ritchie, 95 Cal.Rptr. 462 (Cal.App. 2 Dist. 1971)
People v. Silva, 46 Cal.Rptr. 87 (Cal.App. 2 Dist. 1965)

Tags:
harmless error, enhancements, striking, dismissal, waiver, waiver distinguished, withdrawal, drug offenses, meth amphetamine.

By Brian Murdock