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People v. Thomas (1992) 4 Cal.4th 206 , 14 Cal.Rptr.2d 174; 841 P.2d 159

[No. S025251. Dec 14, 1992.]

THE PEOPLE, Plaintiff and Respondent, v. DERRICK LEON THOMAS, Defendant and Appellant.

(Superior Court of Santa Clara County, No. 136555, Jeremy D. Fogel, Judge.)

(Opinion by Lucas, C. J., expressing the unanimous view of the court.)

COUNSEL

George L. Schraer, under appointment by the Supreme Court, and Winifred T. Gross, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass and John H. Sugiyama, Assistant Attorneys General, Martin S. Kaye, Laurence K. Sullivan, Herbert F. Wilkinson [4 Cal.4th 208] and Ronald S. Matthias, Deputy Attorneys General, for Plaintiff and Respondent.

Michael R. Capizzi, District Attorney (Orange) and E. Thomas Dunn, Jr., Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

LUCAS, C. J.

In 1989, the Legislature amended Penal Code section 1170.1, subdivision (h) (all further statutory references are to this code), by deleting section 12022.5 (firearm use enhancements) from the list of statutory enhancements that a trial court might, in its discretion, strike if sufficient "circumstances in mitigation" exist. The question arises whether trial courts nonetheless may continue to strike such firearm use enhancements "in furtherance of justice" under section 1385. Because we find clear legislative intent to withhold such authority, we conclude the Court of Appeal in the present case correctly ruled the trial court herein lacked such authority.

On January 7, 1990, defendant Derrick Leon Thomas (age 18) and his companion (age 17) robbed a store in Palo Alto. Defendant was holding a loaded .22-caliber gun borrowed from his companion, who had taken it from his mother without her knowledge. The robbers took and divided $160 in cash, fled on bicycles, and were arrested a few minutes later.

A complaint charged defendant with robbery (§ 211), and alleged a firearm use (§ 12022.5, subd. (a)) and probation ineligibility (§ 1203.06). Defendant negotiated a plea bargain, the precise term of imprisonment conditioned on the result of his motion to strike the firearm use enhancement. In support of his motion to strike, defendant submitted an evaluation of the interviewing counselor, who concluded that the robbery was an isolated and impulsive act not likely to be repeated by defendant. The People argued the trial court lacked authority to entertain the motion to strike. The court denied defendant's motion, without indicating whether or not it was exercising discretion under section 1385. Pursuant to the terms of defendant's plea bargain, he was then sentenced to a five-year term of imprisonment. Defendant appealed.

The Court of Appeal affirmed, concluding the trial court lacked authority to entertain a motion under section 1385 to strike a firearm use enhancement provided for by section 12022.5. As will appear, we agree. [4 Cal.4th 209]

1. The applicable statutes

Section 12022.5, subdivision (a), in pertinent part provides for an enhanced punishment of three, four or five years' imprisonment for "any person who personally uses a firearm in the commission or attempted commission of a felony ...."

Section 1170.1, subdivision (d), provides that when the court imposes a prison sentence for a felony (see generally § 1170), "the court shall also impose the additional terms provided" in 16 specified sections of the Penal Code and the Health and Safety Code, including section 12022.5, "unless the additional punishment therefor is stricken pursuant to [section 1170.1,] subdivision (h)."

Section 1170.1, subdivision (h), provides that "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided" in 13 of the 16 enhancement sections set forth in section 1170.1, subdivision (d), "if it determines that there are circumstances in mitigation of the additional punishment. ..."

Until 1989, section 12022.5 was one of the sections listed in section 1170.1, subdivision (h). The Legislative Counsel's Digest comment concerning the proposal to delete reference to section 12022.5 explained the amendment as follows: "Existing law relating to sentencing authorizes a court to strike the additional enhancement involving the personal use of a firearm in the commission ... of a felony .... [¶] This bill would delete that authorization." (Legis. Counsel's Dig., Assem. Bill No. 566 (1989-1990 Reg. Sess.), italics added.)

Finally, section 1385, subdivision (a), permits the sentencing authority "in furtherance of justice [to] order an action to be dismissed." In its 1989 amendment to section 1170.1, subdivision (h), the Legislature deleted reference to section 12022.5, but did not alter or refer to the language of section 1385.

2. Discussion

[1a] Defendant contends the trial court erred in denying his motion to strike the firearm use enhancement without exercising the court's "furtherance of justice" discretion under section 1385. As defendant observes, the power to dismiss an "action" under section 1385 includes the power to dismiss or strike an enhancement. (See People v. Fritz (1985) 40 Cal.3d 227, 229-230 [219 Cal.Rptr. 460, 707 P.2d 833]; People v. Williams (1981) 30 [4 Cal.4th 210] Cal.3d 470, 482-483 [179 Cal.Rptr., 637 P.2d 1029]; People v. Burke (1956) 47 Cal.2d 45, 50-51 [301 P.2d 241]; People v. Dorsey (1972) 28 Cal.App.3d 15, 18-20 [104 Cal.Rptr. 326]; cf. § 1385, subd. (b) [abrogating Fritz's holding that section 1385 may be used to strike "prior serious felony" enhancements under section 667].)

The People, on the other hand, contend that by amending section 1170.1, subdivision (h), to delete the reference to section 12022.5, the Legislature expressed a clear intent to divest the courts of discretion to strike firearm use enhancements. The People suggest further that the Legislature's failure to likewise amend or refer to section 1385 was, at most, a drafting "oversight" of a kind to which we have previously referred. (See, e.g., People v. Pieters (1991) 52 Cal.3d 894, 900-901 [210 Cal.Rptr. 623, 694 P.2d 736]; People v. Jackson (1985) 37 Cal.3d 826, 837-838, and fn. 15 [276 Cal.Rptr. 918, 802 P.2d 420].)

[2] As we observed in People v. Pieters, supra, 52 Cal.3d at pages 898-899, "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But '[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.] Thus, '[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' [Citation.] [3] Finally, we do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' [Citation.]"

Defendant cites cases holding that, absent a clear legislative direction to the contrary, a trial court retains its authority under section 1385 to strike an enhancement. (See People v. Fritz, supra, 40 Cal.3d at pp. 229-230; People v. Williams, supra, 30 Cal.3d at pp. 482-483; People v. Tanner (1979) 24 Cal.3d 514, 518 [156 Cal.Rptr. 450, 596 P.2d 328]; see also People v. Sutton (1985) 163 Cal.App.3d 438, 445-446 [209 Cal.Rptr. 536] [recognizing authority under section 1385 to strike deadly weapon use enhancement under section 12022.3, despite failure of Legislature to include such enhancements in section 1170.1, subdivision (h)]; People v. Price (1984) 151 Cal.App.3d 803, 818-820 [199 Cal.Rptr. 99] [same].) [4 Cal.4th 211]

[1b] But it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation. (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1019 [232 Cal.Rptr. 132, 728 P.2d 202] [section 1385 may be held inapplicable "in the face of [a] more specific proscription on the court's power"]; People v. Tanner, supra, 24 Cal.3d at pp. 519-521 [specific language of section 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under section 1385]; see also People v. Dillon (1983) 34 Cal.3d 441, 467 [194 Cal.Rptr. 390, 668 P.2d 697] [deletion of provision indicates legislative intent to change law].) As we stated in People v. Williams, supra, 30 Cal.3d at page 482, "Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent."

What was the intent of the Legislature in deleting from section 1170.1, subdivision (h), the former reference to section 12022.5? As previously noted, the Legislative Counsel's comment indicated the amendment was intended to "delete" the trial courts' authorization to strike the additional enhancement involving the personal use of a firearm in the commission of a felony. Could the Legislature, in deleting reference to section 12022.5, nonetheless have intended to preserve a power to strike that enhancement under section 1385? We conclude otherwise, and a comparison of the respective standards for striking or dismissing enhancements under section 1170.1, subdivision (h), and section 1385, reinforces that conclusion.

Section 1170.1, subdivision (h), permits a court to strike the punishment for an enhancement "if it determines that there are circumstances in mitigation of the additional punishment ...." Section 1385, on the other hand, permits dismissal of actions (or enhancements) "in furtherance of justice." Are there significant differences between these standards which might have induced the Legislature to leave section 1385 in place as a vehicle for striking firearm use enhancements? It is quite difficult to conceive of any such differences.

The Judicial Council adopted extensive guidelines to assist in determining whether "circumstances in mitigation" exist to justify striking enhancements or reducing sentences to a lower term. (See Cal. Rules of Court, rule 423, and Advisory Com. Comment.) Rule 423 lists a variety of such "circumstances in mitigation," including facts relating to the crime (such as defendant's minor role or laudable motive in the offense, the small likelihood of its recurrence, the presence of duress or coercion by others, or a mistaken claim of right by the defendant), and facts relating to the defendant (including his [4 Cal.4th 212] insignificant prior record, mental or physical condition reducing his culpability, or restitution or satisfactory performance on probation or parole). Rule 423's list of mitigating circumstances mirrors many of the considerations we have stated are appropriate in determining whether to dismiss an action under section 1385 in furtherance of justice. (See People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505 [72 Cal.Rptr. 330, 446 P.2d 138].)

Defendant suggests that the "furtherance of justice" standard is broader than the "circumstances in mitigation" standard, and would include consideration of matters extrinsic to the offense and the offender, such as protection of the public interest. (See People v. Orin (1975) 13 Cal.3d 937, 944 [120 Cal.Rptr. 65, 533 P.2d 193].) Although the public interest may well favor enhancing a defendant's sentence by reason of his firearm use, it would be quite rare when the public interest, but not "circumstances in mitigation," would justify striking such an enhancement. (Such cases seemingly would be limited to situations wherein the People seek to strike an enhancement to enable them to rely on the defendant's gun use as an aggravating sentencing factor.) In most cases, if the public interest favors such relief, that fact readily could be deemed a "circumstance in mitigation of the additional punishment." (See, e.g., People v. Marsh (1984) 36 Cal.3d 134, 145, fn. 8 [202 Cal.Rptr. 92, 679 P.2d 1033] [noting for purposes of remand that striking enhancements may be justified under section 1385 by number of "mitigating circumstances" in case].)

In short, we believe that, at least in the context of striking firearm use enhancements, the two standards are essentially identical. This conclusion supports the People's position that the Legislature's deletion of section 12022.5 was intended to divest the courts of their statutory authority to strike firearm use enhancements, whether such power be exercised under section 1170.1, subdivision (h), or under section 1385.

As previously stated, in determining the legislative intent underlying a new provision or amendment, we must consider the entire scheme of law of which it is a part. The 1989 amendment to section 1170.1, subdivision (h), was included in a bill (Assem. Bill No. 566 (1989-1990 Reg. Sess.), the "McClintock Firearms" bill) that contained a variety of measures expanding or enhancing criminal liability for unlawful firearm use or possession. These new measures included provisions (1) restricting plea bargaining when a defendant personally used a firearm, (2) elevating certain firearm use or possession offenses from misdemeanor/felony ("wobbler") status to felonies, and (3) increasing the term of imprisonment for personal use of a firearm during a felony, as well as (4) the subject provision deleting section 12022.5 [4 Cal.4th 213] from section 1170.1, subdivision (h). (See Legis. Counsel's Dig., Assem. Bill No. 566 (1989-1990 Reg. Sess.).)

In light of the fact that the subject provision is included in a "package" of provisions aimed at enhancing criminal liability for unlawful firearm use, we think it highly unlikely the Legislature intended nonetheless to preserve broad judicial authority under section 1385 to strike a firearm use enhancement "in furtherance of justice."

Defendant observes that prior to the adoption of the foregoing amendment, the Attorney General's Office had urged the Legislature to modify section 1385 to preclude a court from striking a firearm use enhancement in furtherance of justice. Evidently, the Legislature did not deem an amendment to section 1385 necessary in light of its deletion of the specific reference to section 12022.5 in section 1170.1, subdivision (h). This conclusion is supported by a synopsis of Assembly Bill No. 566 prepared by the Senate Committee on the Judiciary, which synopsis referred to the prior ability of courts to strike firearm use enhancements "in the interest of justice," and commented: "This bill would provide that the enhancements shall never be stricken."

Finally, the People observe that although section 1385 provides a broad, general power to dismiss "actions" in furtherance of justice, section 1170.1, subdivision (h), provides a specific power to strike specified enhancements. Under well-established rules of construction, any inconsistency between the two provisions would be resolved by applying the more specific provision (and any amendments thereto). (E.g., People v. Tanner, supra, 24 Cal.3d at p. 521.) Moreover, to accept defendant's argument and hold that section 1385 continues to afford a broad ("furtherance of justice") basis for striking an enhancement under section 12022.5 could effectively negate the 1989 amendment to section 1170.1, subdivision (h). The "furtherance of justice" standard of section 1385 seems broad enough to permit striking an enhancement where mitigating circumstances exist, yet the Legislature in passing the 1989 amendment clearly intended to preclude the exercise of such power. As we previously indicated, a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature could not have intended. (See People v. Tanner, supra, 24 Cal.3d at pp. 518-520 [construing mandatory language of section 1203.06 as precluding power to strike firearm use finding and grant probation].)

For all the foregoing reasons, we conclude the trial court had no discretion to strike the firearm use enhancement under section 12022.5, and properly [4 Cal.4th 214] denied defendant's motion for such relief. The Court of Appeal's judgment is affirmed. Mosk, J., Panelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.

Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. The case concerns whether the power of a trial court to strike enhancements for use of a firearm (Pen. Code, section 12022.5) was affected by amendments to Penal Code section 1170.1, subdivision (d).

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 12/14/1992	4 Cal.4th 206	S025251	Review - Criminal Appeal	closed; remittitur issued

Disposition
Dec 14 1992	Opinion: Affirmed

Dockets
Feb 19 1992	Petition for review filed Appellant Derrick Leon Thomas [Rule 40n]
Feb 21 1992	Received: C/A Record -- 1 Jacket, 4 briefs & 3 Transcripts
Mar 9 1992	Received letter from: Winifred T. Gross, Esq. dated 3-6-92 Re: Effect of Ab 566 Deletion of Pc 1170.1 Authority on Pc 1385 submitted as Exhibit to App's Petn/Review
Mar 24 1992	Time Extended to grant or deny Petition for Review To 4-28-92
Apr 2 1992	Petition for review granted (criminal case) Votes: Mosk, Panelli, Baxter, George & Kennard JJ.
Jun 9 1992	Counsel appointment order filed George L. Schraer for Applt Thomas
Jul 6 1992	Application for Extension of Time filed Appellant's brief on the Mertis [asking to 7-17-92]
Jul 8 1992	Extension of time granted Appellant's brief on the merits to 7-24-92 [Counsel advised by Telecon of the Due Date]
Jul 24 1992	Opening brief on the merits filed Appellant's Opening brief
Jul 24 1992	Motion filed To Take Judicial Notice by Appellant
Aug 19 1992	Compensation awarded counsel Atty Schraer
Aug 20 1992	Application for Extension of Time filed Until 9/17/92 to file Respondent's brief on the merits.
Aug 25 1992	Extension of time granted To file Resp's brief on the merits To 9-17-92. no further Extensions of time Are Contemplated.
Aug 31 1992	Received application to file Amicus Curiae Brief From Appellate Committee of the Calif District Attorneys Assn in support of Respondent.
Sep 8 1992	Permission to file amicus curiae brief granted Appellate Committee of the California District Attorneys Association in support of Respondent. brief Due: 10-5-92 Ans Due: 10-20-92
Sep 17 1992	Answer brief on the merits filed Resp People
Sep 17 1992	Request for Judicial Notice filed Resp People jointly w/Amicus Appellate Committee of Cal D.A.'s Assn
Oct 5 1992	Amicus Curiae Brief filed by: By Applt Comm of Dist Atty Assoc in support of the Resp People
Oct 5 1992	Exhibits Lodged: By Applt Comm of Da Assoc (1 Vol of Second joint Appln Forjudicial Notice)
Oct 8 1992	Reply brief filed (case fully briefed) by appellant Thomas [Rule 40-N]
Oct 9 1992	Received letter from: E. Thomas Dunn, Jr. Deputy D.A. Orange County Re: Omission of Paragraph on page 9 of Amicus brief by Calif Dist. Attys Assn filed 10-5-92.
Oct 20 1992	Filed: Appellant's answer to A/C brief
Oct 29 1992	Case Ordered on Calendar: Monday, December 7, 1992 At 9 A.M. - S.F.
Nov 30 1992	Received letter from: A.G.'s Office
Dec 7 1992	Cause Called and Argued (not yet submitted)
Dec 7 1992	Submitted by order
Dec 14 1992	Opinion filed: Judgment affirmed in full Majority Opinion by Lucas, C.J. -- joined by Mosk, Panelli, Kennard, Arabian, Baxter & George JJ.
Dec 24 1992	Rehearing Petition filed by: Applt Thomas
Dec 28 1992	Time extended to consider modification or rehearing to 3-14-93
Jan 28 1993	Rehearing denied
Jan 28 1993	Remittitur Issued
Feb 11 1993	Received: Receipt for Remittitur (to Record)
Mar 17 1993	Compensation awarded counsel George Schraer

Briefs
Jul 24 1992	Opening brief on the merits filed Appellant's Opening brief
Sep 17 1992	Answer brief on the merits filed Resp People
Oct 5 1992	Amicus Curiae Brief filed by: By Applt Comm of Dist Atty Assoc in support of the Resp People
Oct 8 1992	Reply brief filed (case fully briefed) by appellant Thomas [Rule 40-N]

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