People v. Tanner

• Decision Date: 22 December 1978
• Docket Number: Cr. 20075
• Parties: , 587 P.2d 1112 The PEOPLE, Plaintiff and Appellant, v. Harold Emory TANNER, Defendant and Respondent.
• Court: California Supreme Court

Page 299

151 Cal.Rptr. 299

23 Cal.3d 16, 587 P.2d 1112

The PEOPLE, Plaintiff and Appellant, v. Harold Emory TANNER, Defendant and Respondent.

Cr. 20075.

Supreme Court of California, In Bank.

Dec. 22, 1978.

For Opinion on Rehearing, see 156 Cal.Rptr. 450, 596 P.2d 328.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria DeHart and Patrick G. Golden, Deputy Attys. Gen., for plaintiff and appellant.

John K. Van de Kamp, Dist. Atty., Los Angeles, Harry B. Sondheim and Maurice H. Oppenheim, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and appellant.

Thomas J. Nolan, Jr., Palo Alto, under appointment by the Supreme Court, for defendant and respondent.

Wilbur F. Littlefield, Public Defender, Los Angeles, Harold E. Shabo and Dennis A. Fischer, Deputy Public Defenders, Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman and Harriet R. Wiss, Deputy State Public Defenders, George C. Martinez, San Francisco, Monroe & Riddet, Keith C. Monroe and Roger S. Hanson, Santa Ana, as amici curiae on behalf of defendant and respondent.

TOBRINER, Justice.

In the present case we hold that the Legislature in enacting Penal Code section 1203.06, ¹ did not intend to remove from the trial judge the power that it had given that judge under section 1385 to strike a charge that a defendant used a gun and to grant probation when the interests of justice so dictate. We shall explain that if the Legislature did intend to remove that power from the court under section 1385 it should have explicitly so provided because "the discretion of the judge (under section 1385) is absolute except where the Legislature has specifically curtailed it." (People v. Superior Court (Howard) (1969) 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 337, 446 P.2d 138, 145.)

Over 20 years ago, in People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241, we stated that in the absence of unambiguous statutory language specifically limiting a trial court's power to strike a charge under section 1385, we would not interpret a statute to annul the court's traditional power to dismiss charges in order to avoid imposition of unjust punishment. Section 1203.06 contains no specific language explicitly limiting a trial court's power to strike a charge under section 1385, and thus does not foreclose a trial court from exercising such authority.

Although we confirm the trial court's power to strike a charge of the use of a gun, the courts should use this power most carefully. The public has a compelling interest in deterring illegal use of guns, and the threat of certain punishment is an important deterrent. Thus the trial court should employ its power to strike a use of a gun charge only in extraordinary cases.

The present case a sham robbery designed to prove the inadequacy of a store's security system is such an extraordinary case, a case in which punishment of the defendant by a term in state prison would accomplish no useful purpose. Even after striking the use charge, the judgment of the trial court required defendant to serve one year in the county jail as a condition of probation; surely on the facts of this case the trial court did not abuse its discretion.

Finally, we do not preclude further legislative action. If the Legislature believes that the compelling importance of deterring illegal use of guns can be promoted only by denying trial courts the power to strike charges of the use of guns under section 1385, it has the power specifically to enact such legislation. But because such a limitation on the trial court's authority will result in unjust punishment in extraordinary cases such as the present case, we believe that the legislative intention to deny the power to strike a use charge should appear in clear and unequivocal language. Absent such language we must hold, as we do today, that the trial courts retain the power to strike such findings in the interest of justice.

1. The facts

In the early morning hours of January 9, 1976, defendant, a 27-year-old employee of a company that provided security services to retail establishments, entered a 7-11 grocery store in East Palo Alto and, pointing an unloaded but operable handgun at the store clerk, took approximately $40 from the store's cash registers and safe. Aside from his appropriation of the money, however, defendant did not conduct himself as an ordinary armed robber. In the course of the robbery, defendant engaged the store clerk in a friendly conversation, telling the clerk not to worry, that he (defendant) was also employed by 7-11 stores, and that the clerk should call the police, identify defendant as the robber and "play it straight." Upon leaving the store, defendant reminded the clerk to turn in an alarm and notify the police, and then held the front door of the store open for an entering customer.

The clerk immediately called the police, who arrested defendant in the vicinity of the store approximately a half-hour after the crime. Thereafter, defendant was charged by information and complaint with robbery (§ 211); a separate allegation of the information, "pursuant to sections 12022.5 and 1203.06 of the Penal Code," charged defendant with having used a firearm in the commission of the offense.

At trial defendant admitted the robbery but explained that he had committed the crime to convince the owner of the 7-11 store of the need for additional security and specifically to induce the owner to resubscribe to the security service offered by defendant's employer, a service which the owner had recently terminated. Defendant testified that he thought the gun he had used was inoperable and that he had specifically chosen to commit the robbery when the particular clerk in question was on duty because that clerk had been robbed on previous occasions and would not be unduly frightened. Defendant maintained that at all times he intended to return the stolen money to the store owner, but that he was apprehended before he could do so. Finally, in response to his counsel's questioning, defendant related his participation in mock crime detection dramas in the past, describing how 10 years earlier, when he and his brother were in their late teens, they had dressed up as Batman and Robin and had roamed the streets "climbing on rooftops, swinging over . . . doing somersaults off of roofs (and) (t)hings like that."

Despite defendant's testimony, the jury returned a verdict finding defendant guilty of first degree robbery and also finding that he had used a firearm in the commission of the offense.

Before imposing sentence, the trial court instructed the county probation department to prepare a probation report. After conducting a thorough investigation of defendant's background and the circumstances of the offense, the probation officer recommended that defendant be placed on probation for three years, on condition, inter alia, that he serve six months in the county jail. The report disclosed that defendant had never been previously convicted or arrested for any offense, that defendant's past employers had all given him good recommendations and that the investigating police detective in the instant case did not believe defendant should be sentenced to state prison.

After reviewing the probation report and listening to argument from the parties, the trial court indicated that in light of the unusual circumstances of this crime the court intended to exercise its power to strike the use finding for purposes of both section 12022.5 and section 1203.06. When the district attorney objected that section 1203.06 precluded the striking of a use finding for purposes of granting probation, the trial court suggested that if section 1203.06 were so interpreted the provision would be unconstitutional as an improper legislative invasion of the judicial sentencing function. The court thereupon entered an order striking the use finding for purposes of both sections 12022.5 and 1203.06, committed defendant to the Department of Corrections for the term prescribed by law, but suspended execution of sentence and placed defendant on five years probation on condition, inter alia, that he participate in a psychiatric program and serve one year in the county jail.

On this appeal, the People challenge the trial court's order only insofar as it purports to strike the use finding for purposes of rendering defendant eligible for probation. ² The People contend, first, that section 1203.06 should be interpreted to preclude a trial court from striking a use finding for the purposes of granting probation, and second, that, as so interpreted, the section is not unconstitutional. ³ Because we have concluded that section 1203.06 does not preclude a court from exercising its section 1385 authority to strike a use finding for purposes of granting probation, we need not reach the constitutional issue to which the trial court adverted.

2. Because section 1203.06 does not in explicit terms restrict a trial court's power to strike under section 1385, the provision cannot be interpreted to preclude a trial court's exercise of such power in light of People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241.

From at least as early as 1850, trial courts in California have enjoyed broad authority to dismiss criminal actions in furtherance of the interests of justice. (Stats.1850, ch. 119, p. 323; Stats.1851, ch. 29, p. 279; see, e. g., People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993; People v. Sidener (1962) 58 Cal.2d 645, 648-649, 658-663, 25 Cal.Rptr. 697, 375 P.2d 641.) For more than a century this judicial authority has been codified in section 1385 which provides in relevant part that "(t)he court may, either of its own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."

Although section 1385's language refers explicitly...