People v. Thomas

• Decision Date: 14 December 1992
• Docket Number: No. S025251,S025251
• Citation: 4 Cal.4th 206,841 P.2d 159,14 Cal.Rptr.2d 174
• Court: California Supreme Court
• Parties: , 841 P.2d 159 The PEOPLE, Plaintiff and Respondent, v. Derrick Leon THOMAS, Defendant and Appellant.

Page 174

14 Cal.Rptr.2d 174

4 Cal.4th 206, 841 P.2d 159

The PEOPLE, Plaintiff and Respondent, v. Derrick Leon THOMAS, Defendant and Appellant.

No. S025251.

Supreme Court of California,

In Bank.

Dec. 14, 1992.

Rehearing Denied Jan. 28, 1993.

George L. Schraer, San Diego, under appointment by the Supreme Court, and Winifred T. Gross, Campbell, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass and John H. Sugiyama, Asst. Attys. Gen., Martin S. Kaye, Laurence K. Sullivan, Herbert F. Wilkinson and Ronald S. Matthias, Deputy Attys. Gen., for plaintiff and respondent.

Michael R. Capizzi, Dist. Atty. (Orange) and E. Thomas Dunn, Jr., Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

LUCAS, Chief Justice.

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.

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 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 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.... [p] This bill would delete that authorization." (Italics added, Legis. Counsel's Digest, Assem. Bill No. 566, subd. (1), Stats.1989, ch. 1044.)

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

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 Cal.3d 470, 482-483, 179 Cal.Rptr. 443, 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 § 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, 276 Cal.Rptr. 918, 802 P.2d 420; People v. Jackson (1985) 37 Cal.3d 826, 837-838, and fn. 15, 210 Cal.Rptr. 623, 694 P.2d 736.)

As we observed in People v. Pieters, supra, 52 Cal.3d at pages 898-899, 276 Cal.Rptr. 918, 802 P.2d 420, "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.] 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, 219 Cal.Rptr. 460, 707 P.2d 833; People v. Williams, supra, 30 Cal.3d at pp. 482-483, 179 Cal.Rptr. 443, 637 P.2d 1029; 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 § 1385 to strike deadly weapon use enhancement under section 12022.3, despite failure of Legislature to include such enhancements in § 1170.1, subd. (h) ]; People v. Price (1984) 151 Cal.App.3d 803, 818-820, 199 Cal.Rptr. 99 [same].)

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 [§ 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, 156 Cal.Rptr. 450, 596 P.2d 328 [specific language of § 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under § 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, 179 Cal.Rptr. 443, 637 P.2d 1029, "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...