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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Carlos Razo PRIETO, Defendant and Appellant.

No. G010996.

Decided: April 14, 1992

Alisa M. Weisman, Claremont, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I. Motley, Supervising Deputy Atty. Gen., and Laura Whitcomb Halgren, Deputy Atty. Gen., for plaintiff and respondent.


A jury convicted Carlos Razo Prieto (defendant) of second degree robbery and found he personally used a firearm in the commission of the offense.   He was sentenced to prison for the mitigated term of two years, and received an additional three years for the firearm use enhancement.



Defendant contends the trial court mistakenly believed it did not have discretion to strike the firearm use enhancement under Penal Code section 12022.5.1  The court stated it believed it did not have such discretion, and a review of the sentencing indicates the court may well have stricken the enhancement if it was authorized to do so.   Since the court did have such discretion, a remand is appropriate.2

 Respondent's argument the trial court lacked such discretion can be broken into four parts.   First, respondent points out that in 1989, subdivision (h) of section 1170.1 was amended, disallowing the striking of a section 12022.5 enhancement when mitigating circumstances were present.3  Because section 1170.1, subdivision (h) previously allowed a trial court to strike the additional punishment for the enhancement when it determined mitigating circumstances were present, respondent argues the amendment to subdivision (h), which precluded the striking of a section 12022.5 enhancement, conclusively demonstrates the Legislature intended to limit a trial court's discretion in this area.

 However, for this argument to have merit, it would have to be determined that the phrase “mitigating circumstances” is synonymous with the phrase “in furtherance of justice.”   Section 1170.1 speaks of the ability to strike when mitigating circumstances are present.   Section 1385, subdivision (a) empowers a trial court to dismiss “in furtherance of justice․”  Limitation of the authority under 1170.1 could only affect the authority under section 1385 if the two sections were duplicative.   But, there is no authority for the proposition they are synonymous, and in fact, the clear and unambiguous language of each indicates they are not.  (See People v. McMahan (1992) 4 Cal.App.4th 205, 209–211, 6 Cal.Rptr.2d 44.   But see People v. Thomas (1992) 2 Cal.App.4th 533, 536, 3 Cal.Rptr.2d 55 [review granted Apr. 2, 1992 (S025251) ].)  “Mitigating circumstances” relate to factors in defendant's history and those which surround the crime itself.   (See Cal.Rules of Court, rule 423.)   However, “in furtherance of justice” is much more general and expansive, and refers to anything which a court could properly consider in sentencing a defendant.   Since these phrases are not the same, the Legislature's amendment to section 1170.1, subdivision (h) has no bearing upon a court's authority to dismiss or strike pursuant to section 1385.4

 Second, respondent argues the more specific provision found in section 1170.1, subdivision (d) 5 provides the exclusive means of striking a firearm use enhancement, and must control over the more general provision of section 1385.   However, as we have pointed out, the two sections not only differ in content, but in effect as well.  (See fn. 3, ante.)   Our Supreme Court has stated there must be “clear language eliminating a trial court's section 1385 authority whenever such elimination is intended.”   (People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833.)   Section 1170.1, subdivision (d) does not contain such language and cannot manifest such an effect.

 Third, respondent relies on People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, which held a trial court does not possess the authority under section 1385 to reject a mandatory probation ineligibility finding under section 1203.06 and grant probation to a defendant who used a firearm in the commission of a felony.6  But, in order for Tanner to be dispositive in this case, the probation ineligibility finding under section 1203.06 would have to be identical to section 12022.5's sentence enhancement for using a firearm.   Clearly, however, they are not the same.   Though the evidence necessary to sustain each is the same, each is a totally distinct legal entity.   The first makes a defendant ineligible for probation but the second enhances his sentence.

Section 1385 contains no express limitation of its authority, except for subdivision (b), which provides a trial court may not strike any prior conviction of a serious felony under section 667.   But section 1203.06 is quite explicit, stating that probation shall not be granted to anyone found using a firearm in the commission of various enumerated offenses.   It is this explicitness in section 1203.06 which overrides the more general provision of section 1385.  (People v. Tanner, supra, 24 Cal.3d at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328.)   Since no similar limitation can be found in section 12022.5, the authority to dismiss or strike pursuant to section 1385 is not affected.  (People v. Williams (1981) 30 Cal.3d 470, 479–483, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Dorsey (1972) 28 Cal.App.3d 15, 19, 104 Cal.Rptr. 326;  cf. People v. Price (1984) 151 Cal.App.3d 803, 819, 199 Cal.Rptr. 99;  People v. Sutton (1985) 163 Cal.App.3d 438, 446, 209 Cal.Rptr. 536 (disapproved on other grounds in People v. Equarte (1986) 42 Cal.3d 456, 465, fn. 12, 229 Cal.Rptr. 116, 722 P.2d 890).

 Finally, respondent argues the legislative intent behind Assembly Bill 566, which amended section 1170.1, was clearly to limit the ability of trial courts to strike firearm use enhancements under section 12022.5.   Respondent contends this intent is so ubiquitous, that allowing a court to strike a firearm use enhancement would violate the constitutional guarantee of separation of powers.  (Cal. Const., art. III, § 3.)   We disagree.

“If the language [of a statute] is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature․  [Citations.]”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.   See also People v. Hansel (1992) 1 Cal.4th 1211, 1217, 4 Cal.Rptr.2d 888, 824 P.2d 694;  Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934;  Committee of 7000 v. Superior Court (1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d 708;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Here, the language in section 1385 is likewise “clear and unambiguous.”   This being the case, we believe there is no need to resort to an examination of legislative intent.   If the Legislature wants to limit a trial court's authority to strike under section 1385, it certainly knows how to do so.  (See, e.g., § 1385, subd. (b).) 7  The court here did have the discretion to strike the firearm use enhancement under the authority vested in it by section 1385.   Accordingly, a remand is appropriate.



The case is remanded for resentencing and the court is directed to consider whether the section 12022.5 enhancement should be stricken.   In all other respects, the judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Of course, we express no opinion as to whether the court should, in fact, strike the section 12022.5 enhancement upon remand.

3.   Section 1170.1, subdivision (h), as amended reads:  “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in Sections 667.5, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9, ․ if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”

4.   Section 1170.1, subdivision (h) authorizes a court to strike the additional punishment for various enhancements.   In no way, however, does it empower a court to strike the enhancement itself.   In contrast, section 1385 confers discretion upon a court to dismiss, which includes the authority to strike.  (See People v. Fritz (1985) 40 Cal.3d 227, 229–230, 219 Cal.Rptr. 460, 707 P.2d 833.)   This authority is not directed solely to the punishment imposed, but applies to the action or charge (enhancement) itself.   This further evidences the fact the two sections are quite different.

5.   Section 1170.1, subdivision (d) provides in part:  “When the court imposes a prison sentence for a felony pursuant to Section 1170 the court shall also impose the additional terms provided in Sections ․ 12022.5, ․ unless the additional punishment therefor is stricken pursuant to subdivision (h)․”

6.   Section 1203.06, subdivision (a) states:  “Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons.  [¶] (1) Any person who personally used a firearm during the commission or attempted commission of any of the following crimes․”

7.   Effective January 1, 1991, the Legislature repealed section 12202.5, subdivision (g), which provided that in certain enumerated drug offenses, a court could strike a firearm use enhancement in the interests of justice.   While this repeal was perhaps indicative of legislative intent, section 12022.5, subdivision (g) was merely a reiteration of a court's general authority under section 1385 to strike.   Since its repeal occurred after the commission of the crime here, it has no effect on defendant's sentencing.  (See People v. Hoze (1987) 195 Cal.App.3d 949, 956, 241 Cal.Rptr. 14 [Legislature cannot deprive a court of the discretion to strike an enhancement by enactment of a law after the commission of the crime.].)   And, notwithstanding this repeal, we believe the Legislature's failure to amend section 1385 as it had done previously is dispositive.

FOOTNOTE.   See footnote *, ante.

MOORE, Associate Justice.

SILLS, P.J., and CROSBY, J., concur.

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