People v. Ledesma

• Decision Date: 31 July 1997
• Docket Number: No. S054240,S054240
• Court: California Supreme Court
• Parties: , 939 P.2d 1310, 97 Cal. Daily Op. Serv. 6069, 97 Daily Journal D.A.R. 9926 The PEOPLE, Plaintiff and Respondent, v. Louis LEDESMA, Defendant and Appellant.

Page 610

65 Cal.Rptr.2d 610

16 Cal.4th 90, 939 P.2d 1310, 97 Cal. Daily Op. Serv. 6069,

97 Daily Journal D.A.R. 9926

The PEOPLE, Plaintiff and Respondent, v. Louis LEDESMA, Defendant and Appellant.

No. S054240.

Supreme Court of California.

July 31, 1997.

Rehearing Denied Oct. 1, 1997.

[16 Cal.4th 92] [939 P.2d 1311] William M. Robinson, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Christopher W. Grove, Stan M. Helfman and Peggy S. Ruffra, Deputy Attorneys General, for Plaintiff and Respondent.

Paul J. Pfingst, District Attorney (San Diego), Thomas F. McArdle and Edward J. Mantyla, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

BROWN, Justice.

Is imposition of a sentencing enhancement for personal use of a firearm discretionary or mandatory when the underlying offense is assault with a firearm? (Pen.Code, § 245, subd. (a)(2).) ¹ If discretionary, as the Court of Appeal held in People v. Campbell (1995) 40 Cal.App.4th 1666, 48 Cal.Rptr.2d 340, the trial court must state its reason for imposing any additional term. (§ 1170, subd. (c).) If mandatory, as the Court of Appeal held in People v. Hill (1989) 207 Cal.App.3d 1574, 255 Cal.Rptr. 772, imposition of the midterm is not a sentencing choice and requires no statement of reasons. (§ 1170.1, subd. (d).) Based on the language of section 12022.5, subdivision (d) (section 12022.5(d)), as well as other evidence of legislative intent, we conclude the trial court has no discretion. We therefore affirm the judgment of the Court of Appeal.

PROCEDURAL BACKGROUND

Defendant was convicted of various offenses including assault with a firearm. (§ 245, subd. (a)(2).) The jury also found he personally used a firearm in the commission of the assault. (See § 12022.5, subd. (a)(1).) Based on this finding, the trial court imposed an additional, consecutive midterm sentence for the enhancement.

Defendant appealed contending imposition of a personal use enhancement is discretionary when the underlying felony is assault with a firearm. (§ 12022.5(d); see People v. Campbell, supra, 40 Cal.App.4th at p. 1669, 48 Cal.Rptr.2d 340; People v. Vacca (1995) 38 Cal.App.4th 804, 807-808, 45 Cal.Rptr.2d 483; see also People v. Moore (1986) 178 Cal.App.3d 898, 903, 224 Cal.Rptr. 204.) Therefore, defendant argued, the trial court's failure to state reasons for imposing an additional term was erroneous and requires remand.

[939 P.2d 1312] . (§ 1170, subd. (c); People v. Belmontes (1983) 34 Cal.3d 335, 348-349, 193 Cal.Rptr. 882, 667 P.2d 686.)

Following the rationale of People v. Hill, supra, 207 Cal.App.3d 1574, 1578-1579, 255 Cal.Rptr. 772, the Court of Appeal rejected this argument and concluded a statement was unnecessary because imposition of the enhancement for assault with a firearm is mandatory. (Cal. Rules of Court, rule 428(a); see People v. Johnson (1996) 51 Cal.App.4th 1329, 1332, 59 Cal.Rptr.2d 798; People v. Martinez (1987) 194 Cal.App.3d 15, 21-22, 239 Cal.Rptr. 272.) We granted review to determine the proper construction of section 12022.5(d) and resolve the conflict in the Courts of Appeal.

DISCUSSION

At the time of defendant's offense, section 12022.5, subdivision (a), provided that a sentencing enhancement "shall" be imposed for "any person who personally uses a firearm in the commission or attempted commission of a felony" "unless use of a firearm is an element of the offense...." ² Pursuant to subdivision (d), "[t]he additional term ... may be imposed in cases of assault with a firearm under paragraph (2) of subdivision (a) of Section 245, or assault with a deadly weapon which is a firearm under Section 245." ³

Defendant takes the position that "may" is permissive, relying principally on People v. Campbell, supra, 40 Cal.App.4th 1666, 48 Cal.Rptr.2d 340. In Campbell, the Court of Appeal found "the plain language of section 12022.5, subdivision (d) unambiguous and presume[d] the Legislature meant what it said when it used the word 'may' to grant an exception to the long-established proscription in section 12022.5, subdivision (a)...." (40 Cal.App.4th at p. 1673, 48 Cal.Rptr.2d 340; People v. Vacca, supra, 38 Cal.App.4th at pp. 807-808, 45 Cal.Rptr.2d 483.) Accordingly, the court construed subdivision (d) as "granting the trial court discretion to determine whether or not to impose the punishment for a personal firearm use enhancement when [firearm use] is an element of a section 245 defined assault...." (People v. Campbell, supra, 40 Cal.App.4th at p. 1672, 48 Cal.Rptr.2d 340.) Defendant also analogizes to section 667.6, subdivisions (c) and (d). Courts have interpreted "may" in subdivision (c) as conferring discretionary authority to impose full, separate, and consecutive terms, whereas "shall" in subdivision (d) makes such sentencing mandatory. (People v. Craft (1986) 41 Cal.3d 554, 558-559, 224 Cal.Rptr. 626, 715 P.2d 585; People v. Smith (1984) 155 Cal.App.3d 539, 543, 202 Cal.Rptr. 259; cf. People v. Reiley (1987) 192 Cal.App.3d 1487, 1490, 238 Cal.Rptr. 297 [construing "shall" in section 1170.1, subdivision (d), as mandatory and "may" in subdivision (e) as permissive].)

Contending section 12022.5(d) is mandatory, the Attorney General argues "may" does not always denote discretion and relies on People v. Hill, supra, 207 Cal.App.3d 1574, 255 Cal.Rptr. 772. In Hill, the Court of Appeal concluded "that the permissive language, i.e., the word 'may' of section [12022.5(d) ], is an exception to the prohibitive language of subdivision (a), i.e., 'unless use of a firearm is an element of the offense....' " (207 Cal.App.3d at p. 1579, 255 Cal.Rptr. 772.) "May" was not intended to create a new class of crimes in which the court would have discretion to impose the enhancement, but to confer authorization to do so when otherwise precluded. (See People v. Johnson, supra, 51 Cal.App.4th at pp. 1332-1333, 59 Cal.Rptr.2d 798.) Assault with a firearm thus comes within the mandatory terms of section 12022.5, subdivision (a).

Well-established principles guide our resolution of this conflict. "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as Although the "shall"/"may" dichotomy cited by defendant is a familiar interpretive device, it is not a fixed rule of statutory construction. (See 1A Sutherland, Statutory Construction (5th ed.1993) pp. 763-769 ["shall" can be construed as either mandatory or directory as well as denote future operation]; Evans, Statutory Interpretation (1989) pp. 237-239 ["may" can be permissive or empowering].) Moreover, unlike some codes that expressly define "shall" as mandatory and "may" as permissive (see, e.g., Bus. & Prof.Code, § 19; Lab.Code, § 15; Prob.Code, § 12), the Penal Code provides only that "[w]ords and phrases must be construed according to the context and the approved usage of the language ...." (§ 7, subd. 16.)

[939 P.2d 1313] 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.] 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.]" (People v. Pieters (1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420.)

"May" is a common grammatical term encompassing multiple meanings, including an expression of "ability" or "power" as well as "permission." (Webster's New World Dict. (3d college ed.1988) p. 837.) Moreover, judicial authorities have construed "may" as both discretionary and mandatory. (See, e.g., In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495 ["The ordinary import of 'may' is a grant of discretion."]; Harless v. Carter (1954) 42 Cal.2d 352, 356, 267 P.2d 4 [" 'Where persons or the public have an interest in having an act done by a public body "may " in a statute means "must." (Citation.)' "]; Hollman v. Warren (1948) 32 Cal.2d 351, 356, 196 P.2d 562 ["may" construed as mandatory in Government Code section 8200]; see also Black's Law Dict. (6th ed.1990) p. 979, col. 2; Webster's New World Dict., supra, at p. 837 ["may" in law means "shall; must"].) Given this definitional diversity, it is impossible to conclude with sufficient certainty what the Legislature intended by its use of "may" if we consider the word in isolation. We must therefore focus more broadly on the language, context, and history of the statute.

In tracing the evolution of section 12022.5(d), we begin before the beginning. Section 12022.5 derives from an early version of section 12022, which provided a sentencing enhancement for a defendant armed with a deadly weapon or concealable firearm during the commission or attempted commission of a felony. By judicial construction, section 12022 applied only when "the use of a gun [or other deadly weapon] was not one of the essential factors" of the underlying offense (In re Shull (1944) 23 Cal.2d 745, 750, 146 P.2d 417 [assault with a deadly weapon] ) or "an essential element of the crime" (People v. Floyd (1969) 71 Cal.2d 879, 883, 80 Cal.Rptr. 22, 457 P.2d 862 [first degree robbery, which required the defendant be armed with a deadly weapon] ).

In 1969, the Legislature enacted the first version of section 12022.5, which provided in relevant part: "Any person who uses a firearm in the commission or attempted...