In re Varnell

• Decision Date: 19 June 2003
• Docket Number: No. S104614.,S104614.
• Citation: 30 Cal.4th 1132,135 Cal.Rptr.2d 619,70 P.3d 1037
• Court: California Supreme Court
• Parties: In re Ronald Lee VARNELL on Habeas Corpus.

135 Cal.Rptr.2d 619

30 Cal.4th 1132

70 P.3d 1037

In re Ronald Lee VARNELL on Habeas Corpus.

No. S104614.

Supreme Court of California.

June 19, 2003.

Michael P. Judge, Public Defender, Albert J. Menaster, Alice McVicker and Alex Ricciardulli, Deputy Public Defenders, for Petitioner Ronald Lee Varnell.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Marc J. Nolan, Deputy Attorneys General, for Respondent the People.

Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, and Phyllis C. Asayama, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Respondent the People.

BAXTER, J.

Penal Code section 1385, subdivision (a)¹ authorizes a trial court to "order an action to be dismissed" if the dismissal is "in furtherance of justice." Our case law has construed section 1385 to permit a court to dismiss individual counts in accusatory pleadings (People v. Polk (1964) 61 Cal.2d 217, 225-228, 37 Cal.Rptr. 753, 390 P.2d 641), sentencing enhancements (see People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159), allegations that the defendant has suffered a prior conviction (People v. Burke (1956) 47 Cal.2d 45, 49-53, 301 P.2d 241), and allegations that the defendant has suffered a prior "strike"² (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, 53 Cal.Rptr.2d 789, 917 P.2d 628). In each case, our analysis of section 1385 has presupposed the existence of "charges or allegations in an indictment or information" to dismiss. (People v. Hernandez (2000) 22 Cal.4th 512, 523, 93 Cal.Rptr.2d 509, 994 P.2d 354.)

In this case, we must decide whether a trial court may rely on section 1385 to do something other than dismiss the charges or allegations in a criminal action—i.e., whether a trial court may invoke section 1385 to disregard "sentencing factors."³ Here, the trial court relied on petitioner's prior serious felony conviction and resulting prison term to deem him ineligible for mandatory probation and drug treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). Proposition 36, which was adopted by the voters in the November 2000 election, mandates probation and drug treatment for certain nonviolent drug offenders but excludes from the program other offenders—such as petitioner—who have previously committed serious or violent felonies and have not remained free of prison custody for five years. (§ 1210.1, subd. (b)(1).) The Court of Appeal held that the trial court had the power under section 1385 to disregard petitioner's criminal history, even though petitioner's ineligibility was not a charge or allegation in the information that could be dismissed, and remanded for the trial court to reconsider its sentence. We reverse, and hold instead that trial courts may not use section 1385 to disregard "sentencing factors" that are not themselves required to be a charge or allegation in an indictment or information.

BACKGROUND

The Los Angeles County District Attorney charged petitioner with possession of methamphetamine and alleged a prior "strike," arising from his 1995 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), as well as a prior prison term enhancement (§ 667.5, subd. (b)), arising from the same conviction. Petitioner pleaded not guilty and filed separate requests to have the trial court dismiss the "strike" allegation, so as to avoid the "Three Strikes" law, and to disregard "the prior or count being used to disqualify [him] from Proposition 36."

At a hearing, petitioner conceded that he was ineligible for mandatory drug treatment under Proposition 36, in that he had been convicted of a serious felony and had failed to remain free of custody for the five years preceding his nonviolent drug possession offense. He urged the court to invoke section 1385 to transform his eligibility. When the court agreed to dismiss the alleged strike but found that the fact of the prior conviction and resulting prison term rendered him "ineligible in this court's opinion for Proposition] 36 treatment," petitioner entered a plea of no contest. The court sentenced petitioner to the low term of 16 months and awarded credits of 189 days.

Petitioner filed a notice of appeal and, very shortly thereafter, also filed a petition for writ of habeas corpus in the Court of Appeal, seeking a declaration that trial courts, by invoking section 1385, may disregard the eligibility factors enacted as part of Proposition 36. The Court of Appeal issued an order to show cause and, in a published opinion, held that trial courts could rely on section 1385 to disregard "historical facts" in determining a defendant's eligibility under Proposition 36. Based on its belief that the trial court had been unaware of this discretion, the Court of Appeal granted the writ and ordered the trial court to reconsider petitioner's sentence.

DISCUSSION

Proposition 36 outlines an alternative sentencing scheme for those convicted of certain narcotics offenses. In effect, it acts as an exception to the punishment specified in an individual narcotics offense.

Section 1210.1, subdivision (a), which was added to the Penal Code by Proposition 36, provides that "any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.... A court may not impose incarceration as an additional condition of probation." Petitioner's current offense, possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), qualifies as a nonviolent drug possession offense. (Pen.Code, § 1210, subd. (a).)

The mandate of probation and treatment, however, does not apply to five defined classes of defendants:

"(1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.

"(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.

"(3) Any defendant who: [¶] (A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-rolled cigarette, containing phencyclidine. [¶] (B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine, or phencyclidine.

"(4) Any defendant who refuses drug treatment as a condition of probation.

"(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subdivision (a), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail." (§ 1210.1, subd. (b).)

Petitioner concedes that he is statutorily ineligible for the benefits of Proposition 36. He was convicted of assault with a deadly weapon in 1995 and was not released from prison until 1998, less than three years before he committed his current drug offense. But the Court of Appeal, reasoning that he could become eligible if the trial court were to disregard these historical facts, held that section 1385 could give him what the electorate did not. We disagree with the Court of Appeal.

"The only action that may be dismissed under Penal Code section 1385, subdivision (a), is a criminal action or a part thereof." (People v. Hernandez, supra, 22 Cal.4th at p. 524, 93 Cal.Rptr.2d 509, 994 P.2d 354, italics added.) We have consistently interpreted "action" to mean the "individual charges and allegations in a criminal action" (id. at pp. 521-522, 523, 93 Cal. Rptr.2d 509, 994 P.2d 354; People v. Burke, supra, 47 Cal.2d at p. 50, 301 P.2d 241) and have never extended it to include mere sentencing factors. Thus, our courts have refused to permit trial courts to invoke section 1385 to dismiss sanity proceedings or a plea of insanity (Hernandez, supra, 22 Cal.4th at pp. 522-524, 93 Cal. Rptr.2d 509, 994 P.2d 354); to reduce a verdict of first degree murder to second degree murder (People v. Superior Court (Prudencio) (1927) 202 Cal. 165, 173-174, 259 P. 943, disapproved on other grounds in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501, 72 Cal.Rptr. 330, 446 P.2d 138; cf. § 1181, subds. 6, 7); to reduce the offense of conviction to an uncharged lesser related offense (People v. Smith (1975) 53 Cal.App.3d 655, 657-658, 126 Cal.Rptr. 195); or to enter a judgment of acquittal (People v. Superior Court (Jonsson) (1966) 240 Cal.App.2d 90, 92-93, 49 Cal.Rptr. 365, disapproved on other grounds in People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501, 72 Cal. Rptr. 330, 446 P.2d 138). A ruling that section 1385 could be used to disregard sentencing factors, which similarly are not included as offenses or allegations in an accusatory pleading, would be unprecedented.

It also would be inconsistent with our description of the effect of a section 1385 dismissal. As we have repeatedly emphasized, dismissal of a prior conviction allegation under section 1385 "is not the equivalent of a...