People v. Dorsey, Cr. 4824
| Decision Date | 04 October 1972 |
| Docket Number | Cr. 4824 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Herman DORSEY, Defendant and Appellant. |
After a fatal family altercation, the defendant was convicted of second degree murder and assault with a deadly weapon. The jury also found to be true the allegation of the use of a firearm. (Penal Code, § 12022.5.) 1 At sentencing, the trial court expressed itself as being disposed to dismiss the use of a firearm allegation because of defendant's good background but held that it lacked the authority to do so.
On appeal, defendant makes no attack on the judgment of conviction which therefore must stand. The sole issue presented is whether or not the court had the power to dismiss the use of a firearm allegation under Penal Code, § 1385, 2 for the purpose of sentencing.
While this is an issue of first impression, we are not sailing into entirely uncharted waters. Four cases give us guidance.
In People v. Burke, 47 Cal.2d 45, 301 P.2d 241, the court approved the striking of an admitted prior under Penal Code, § 1385, for the purpose of sentencing. The court further held, 'The authority to dismiss the whole includes, of course, the power to dismiss or 'strike out' a part.' (People v. Burke, Supra, at p. 51, 301 P.2d at p. 244.)
In People v. Superior Court (Howard), 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138, the court approved the dismissal under Penal Code, § 1385, of the entire charge after a guilty verdict. The court stated, 'In our opinion, the standard of furtherance of justice will best be served if we recognize discretion in the trial judge, who viewed the witnesses and heard the conflicting testimony, to dismiss on the basis of the reasons he has set forth (interest of justice) rather than severely limit such discretion to cases where the evidence is insufficient as a matter of law.' (People v. Superior Court (Howard), Supra, at p. 505, 72 Cal.Rptr. at p. 339, 446 P.2d at p. 147.)
In People v. Superior Court (Mowry), 20 Cal.App.3d 684, 97 Cal.Rptr. 886, the court approved the dismissal of an entire charge in a case in which the defendant had already been sentenced to prison on a similar charge. The court stated that the trial court could take into consideration its own sentencing practices and conclude that a conviction would only result in a concurrent sentence.
In People v. Flores, 6 Cal.3d 305, 98 Cal.Rptr. 822, 491 P.2d 406, a plea bargain was approved which avoided entirely the effect of Penal Code, § 12022.5, even though the facts stated in open court by the defendant led to no other conclusion but that a firearm had been used in the commission of the offense.
Thus we have had approval of the striking of an admitted prior for sentencing purposes (Burke), of an entire charge after a guilty verdict (Howard), an entire charge to avoid an unnecessary trial which would presumably only result in a concurrent sentence (Mowry), and the complete avoidance of the provisions of Penal Code, § 12022.5, in a plea bargain situation (Flores). The distinction between these situations and the instant one in which the court desires, as part of its sentencing responsibility, to dismiss a use of a firearm allegation strikes us as a distinction without a difference.
While the power to define crimes and fix penalties is vested exclusively in the legislative branch (Keeler v. Superior Court, 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617), the imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions (People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993).
Mandatory, arbitrary or rigid sentencing procedures invariably lead to unjust results. Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender. Subject always to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting the punishment to the offender.
Our holding in this case means simply that if the trial judge after hearing the case and reading the probation report feels that society needs the protection of the mandatory additional five years incarceration provided for under Penal Code, § 12022.5, that court may allow the finding under that section to stand. If, however, the trial court finds that allowing such a finding to stand would be counter-productive to the eventual rehabilitation of the defendant and that such additional incarceration is neither necessary nor desirable in the handling of that particular offender, that court can strike the finding. We can see no social, moral or legal impediment in the striking of such an allegation in a proper case.
If the Legislature intends that the provisions of Penal Code, § 12022.5, not be subject to dismissal, it could and should so indicate.
The Attorney General complains that the motion to strike was made by the defendant and that there is no provision for the defendant to make such a motion under Penal Code, § 1385. This is true. 3 However, the court should have the opportunity, under the facts of this case, to order the dismissal on its own motion if to do so would be in furtherance of justice. When, or if, this is done, it must be done in furtherance of justice and the reasons for the dismissal set forth in the minutes of the court thus subjecting the trial court's actions to appropriate appellate review. (Penal Code, § 1385; People v. Superior Court (Howard), Supra, 69 Cal.2d 491...
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People v. Tanner
...information" (47 Cal.2d at p. 50, 301 P.2d at p. 244) which might subject a defendant to increased punishment. In People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, the Court of Appeal specifically held that a trial court has authority under section 1385 to strike a use finding at......
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People v. Tanner
...information" (47 Cal.2d at p. 50, 301 P.2d at p. 244) which might subject a defendant to increased punishment. In People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, the Court of Appeal specifically held that a trial court has authority under section 1385 to strike a use finding at......
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People v. Superior Court (Pipkin)
...a special circumstances finding. In Rodriguez, the Supreme Court held: "The language in Williams referring to [People v. Dorsey (1972) 28 Cal.App.3d 15, 19, 104 Cal.Rptr. 326] merely indicated that it and similar cases remained valid as support for the proposition that 'section 1385 is appl......
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People v. Rodriguez
...that this court declared (People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029) that People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, had not been overturned by our decision in People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328. In Dorsey......