PEOPLE v. HILLEGAART

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

The PEOPLE, Plaintiff and Appellant, v. John Marinus HILLEGAART, Defendant and Respondent.

No. G010190.

Decided: August 15, 1991

Ronald Y. Butler, Public Defender, Carl C. Holmes, Asst. Public Defender, Constance Istratescu, Deputy Public Defender, for defendant and respondent.

OPINION

A jury convicted defendant John Marinus Hillegaart of second degree robbery (Pen.Code, §§ 211/212.5, subd. (b)) 1 and found he personally used a firearm in the commission of the offense.  (§§ 1203.06, subd. (a)(1);  12022.5.)

He was sentenced to the mitigated term of two years on the robbery charge.   A prison sentence was imposed because the court felt it was precluded from granting probation.   The court stayed imposition of sentence on the section 12022.5 use of a firearm enhancement under authority of section 1385.2

On appeal, the People contend the court acted in excess of its jurisdiction and imposed an illegal sentence by staying imposition of sentence for the section 12022.5 enhancement.

I

FACTS

On March 16, 1990, defendant approached a woman who was getting out of her car in the parking lot of a clothing store in Costa Mesa.   He displayed a gun held under his shirt and ordered the victim to give him her purse and car keys.   After telling her he would be back with her car in an hour, he drove away, passing the Costa Mesa Police Department.   Unbeknownst to him, the victim had run to a public telephone and called 911.   The stolen car was spotted almost immediately by a Costa Mesa officer, who stopped defendant.

Oddly, at defendant's sentencing the victim's father pleaded with the court to be merciful toward defendant, who was a heroin addict but had no significant prior adult record.

The court stated:  “So for the crime for which you are convicted, sir, 211, I am going to sentence you to the mitigated term to state prison.   That would be for two years.   The reasons for the mitigation that I find, you have an insignificant ․ prior record.   And with all these people behind you, I probably would have put you on probation had I felt that I had the power to do that, but I don't believe I have the power under 1203.06(a)(1)․  [¶] With respect to the enhancement which ․ was found to be true that you used a firearm in the commission of this offense, I am going to sentence you to the minimum or the mitigated term of three years as an enhancement.   However, I am going to stay the three years.   I think I have that power under 1385, and for the same reasons that I would have given you probation but for the fact that I can't, and I think you have an insignificant prior record․”

The minute order from defendant's sentencing indicates there was a stay of execution of sentence on the section 12022.5 firearm enhancement under the authority of “1385 under same reason of giving probation but court doesn't have power to give probation.”   The minute order further reflects the reason the court pronounced judgment in the manner that it did was because, “In court's opinion defendant has insignificant record, ct. [sic] does not have power to give probation․”

II

ISSUES ON APPEAL

The People filed this appeal challenging the authority and jurisdiction of the court to stay the firearm use enhancement under the legislative authority of section 1385.   Two issues are presented:  (1) Though the court indicated it was staying imposition of sentence on the firearm use enhancement, were the court's actions the functional equivalent of striking the enhancement?  (2) Notwithstanding the court's inability to grant probation to a defendant who personally uses a firearm, may a court strike the sentence for the use of a firearm in the interest of justice under section 1385?

III

“STAY” VERSUS “STRIKE”

 The People contend the court lacked jurisdiction to stay the firearm use enhancement.   We agree.   The terms “stay” and “strike” are not synonymous.  (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123, 231 Cal.Rptr. 387;  People v. Santana (1986) 182 Cal.App.3d 185, 190, 227 Cal.Rptr. 51;  People v. Calhoun (1983) 141 Cal.App.3d 117, 126, 190 Cal.Rptr. 115.)  “The difference between ‘striking’ and ‘staying’ is not a mere linguistic difference․  [S]triking the enhancements ․ [implies] ․ a finding that they were insupportable in the interests of justice or would have required mitigating factors.  [Citations omitted.]   The decision to ‘stay’ is, on the other hand, a sentencing method;  that is, a sentence may be ‘imposed’ or ‘stayed.’ ”  (People v. Calhoun, supra, at p. 126, 190 Cal.Rptr. 115.)   “A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency.  [¶] In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding.   It is tantamount to a dismissal.  [Fns. omitted.]”  (People v. Santana, supra, 182 Cal.App.3d at p. 190, 227 Cal.Rptr. 51.)

 Except where expressly authorized by statute, a court may not stay imposition of the sentence for an enhancement.  (§ 1170.1, subds. (d) and (h);  People v. Eberhardt, supra, 186 Cal.App.3d at pp. 1121–1122, 231 Cal.Rptr. 387.)   If the court here truly intended to stay imposition of sentence for the firearm use enhancement, it acted in excess of its jurisdiction and imposed an illegal sentence.   Unfortunately, and yet understandably, courts have frequently confused, juxtaposed and treated as synonymous these two very distinct terms.   The question we must ask, then, is whether the court, in calling its actions a “stay,” actually meant to “strike” the enhancement.  “The use of the word ‘strike’ or ‘stay,’ ․ is not always determinative of the trial court's intent.   The focus should not be on the words used but on the functional effect of the trial court's order.”   (People v. Santana, supra, 182 Cal.App.3d at p. 191, 227 Cal.Rptr. 51.)

In Santana, the trial judge failed to impose a prior serious felony enhancement, stating, “Time on the prior is stayed․”   The Court of Appeal concluded, “The functional effect of this order was a striking, not a staying, because the order was unconditional.   Under no circumstance, express or implied, could the five-year enhancement be resurrected and imposed at some future point in time.”  (Id. at p. 191, 227 Cal.Rptr. 51, fn. omitted.)

 Here, the court's ruling was analogous to that which occurred in Santana.   Though the minute order reflects “<3>” as the sentence imposed for the enhancement, which would traditionally indicate that a three-year sentence was imposed for the enhancement, which would traditionally indicate that a three-year sentence was imposed and stayed, nowhere in the minutes or in the reporter's transcript is there any indication the three-year enahncement could be resurrected and imposed at some future point in time.   Instead, the court's refusal to impose the enhancement was unconditional.   We therefore hold the court, though it used the term “stay,” meant to strike the section 12022.5 enhancement, and that its actions were the functional equivalent of striking the enhancement.

IV

STRIKING THE 12022.5 ENHANCEMENT

We must next determine whether the court acted within its jurisdiction in striking the section 12022.5 enhancement.   Plaintiff relies on People v. Calhoun, supra, 141 Cal.App.3d 117, 190 Cal.Rptr. 115, but the reliance is misplaced.   There, the trial court's actions were not the functional equivalent of a striking of the enhancement.   The court literally meant to stay the enhancement, which it had no authority to do.   Because the court in Calhoun stayed the firearm use enhancement instead of striking it, Calhoun is of no benefit to plaintiff here.

 Section 1385, subdivision (a) permits a court to exercise its discretion to dismiss or strike an enhancement, in furtherance of justice.   The power to “strike” is included within the authority to dismiss.  (See People v. Fritz (1985) 40 Cal.3d 227, 229–230, 219 Cal.Rptr. 460, 707 P.2d 833.)   The statement of reasons for striking the enhancement must appear in the court's minutes.   Here, the minutes indicated the court was, in effect, striking the enhancement under section 1385 because of defendant's insignificant prior record.   This was sufficient to satisfy the requirements of section 1385.  (See People v. Santana, supra, 182 Cal.App.3d at p. 193, 227 Cal.Rptr. 51;  People v. Andrade (1978) 86 Cal.App.3d 963, 974, 150 Cal.Rptr. 662.)

 Absent a clear legislative direction to the contrary, a trial court may exercise its authority under section 1385, subdivision (a) to strike an enhancement.  (People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833;  People v. Marsh (1984) 36 Cal.3d 134, 142–143, 202 Cal.Rptr. 92, 679 P.2d 1033;  People v. Williams (1981) 30 Cal.3d 470, 482–483, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Santana, supra, 182 Cal.App.3d at p. 192, 227 Cal.Rptr. 51.)   The issue is whether the Legislature has expressed a clear intent that trial courts not have the discretion under section 1385 to strike a section 12022.5 firearm use enhancement.

 The difficulty in such an analysis is that section 1203.06, subdivision (a)(1) and section 12022.5 are, at the same time, identical and distinct.   Section 12022.5, subdivision (a) provides that:  “․ [A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison․”   It is a penalty enhancement.

Section 1203.06, subdivision (a) states that:  “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․”   The enumerated crimes include robbery.   Thus, the section is not a penalty enhancement, but a mandatory denial of probation allegation.   In this way, the two are utterly distinct.   Yet the conduct they regulate is the same.

In People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, relied on by the People, our Supreme Court held that a trial court did not have authority to strike a section 1203.06, subdivision (a) allegation in order to place an otherwise ineligible defendant on probation.   Because the Legislature had enacted section 1203.06, the court found sufficient indicia of a legislative intent to preclude judicial discretion under section 1385.  (Id. at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)

If Tanner applied to the striking of a section 12022.5 enhancement, as the People contend, our discussion would be over.   However, it does not.   Tanner applies specifically to a denial of probation allegation under section 1203.06.   True, the elements of section 1203.06 are the same as those under section 12022.5;  in fact, they are identical.   But section 1203.06, by its very terms, precludes a trial court from granting probation, and it was this specific manifestation of legislative intent that the court in Tanner held was sufficient to override the general statutory authority vested in trial courts to dismiss or strike in the interest of justice under section 1385.   Tanner did not address a court's authority under section 1385 to dismiss or strike a section 12022.5 enhancement.   In a footnote, the Tanner court noted that:  “The People's notice of appeal purports to challenge striking the use-finding not only as to section 1203.06 but also as to section 12022.5.   That section would increase the term of imprisonment for using a firearm in the commission of particular crimes.   However, the People have not briefed the issue as to section 12022.5, their argument being confined to section 1203.06 issues.   We deem the People to have abandoned section 12022.5 issues.”   (Id. at p. 518, fn. 2, 156 Cal.Rptr. 450, 596 P.2d 328.)   It is axiomatic that cases “are not authority for propositions not there considered.”   (People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241.)   Thus, Tanner is not the last word as to whether a trial court can strike or dismiss a section 12022.5 allegation.

Defendant, on the other hand, relies primarily on two cases for his contention the right to dismiss or strike under section 1385 has not been curtailed by any specific legislative intent to the contrary.   In People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326, a pre-Tanner case, the court held that a trial court had authority to strike a section 12022.5 enhancement under section 1385, stating, “If the Legislature intends that the provisions of ․ section 12022.5, not be subject to dismissal, it could and should so indicate.”  (Id. at p. 19, 104 Cal.Rptr. 326.)   As defendant points out, the Legislature is presumed to be aware of existing judicial decisions interpreting similar provisions.   Yet nothing in section 12022.5 or in section 1385 precludes the striking or dismissal of a section 12022.5 enhancement.

Defendant also relies on People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, where the court upheld the dismissal of two special circumstance findings under section 1385, holding that the rule of statutory construction developed in previous cases and reiterated in People v. Dorsey, supra, 28 Cal.App.3d 15, 104 Cal.Rptr. 326 remains the law:  “Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.”   (People v. Williams, supra, 30 Cal.3d at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)

In People v. Rodriguez (1986) 42 Cal.3d 1005, 232 Cal.Rptr. 132, 728 P.2d 202, appellant argued that People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029 was proof that Tanner had not overruled People v. Dorsey, supra, 28 Cal.App.3d 15, 104 Cal.Rptr. 326, and that a trial court was vested with the discretion to dismiss a denial of probation allegation pursuant to section 1203.06.   Our Supreme Court agreed that Williams and Dorsey remained good law and that “[s]ection 1385 is applicable in the absence of a specific indication by the Legislature to the contrary.”  (People v. Rodriguez, supra, 42 Cal.3d at p. 1019, 232 Cal.Rptr. 132, 728 P.2d 202, quoting People v. Williams, supra, 30 Cal.3d at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029.)   However, the Rodriguez court also noted that Williams did not purport to overrule Tanner to the extent “[s]ection 1203.06 precluded the trial court from striking the use finding;  the exercise of judicial discretion permitted pursuant to section 1385 was inapplicable in the face of the more specific proscription on the court's power.”  (People v. Rodriguez, supra, 42 Cal.3d at p. 1019, 232 Cal.Rptr. 132, 728 P.2d 202.)   In Rodriguez, the court stayed a firearm use enhancement pursuant to section 12022.5.   The issue of the effect of section 1385 upon section 12022.5 was thus not addressed.3  Rodriguez does not provide us with the answer we seek.

 The People suggest the answer can be found in the text of section 1170.1, subdivision (h).   That subsection 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.”   Subdivision (h) was amended in 1989, effective January 1, 1990, by deleting section 12022.5 from the list of Penal Code enhancements which may be stricken if a trial court determines there are sufficient circumstances in mitigation.   The People argue the fact the Legislature deleted section 12022.5 from this list evinces its intent to preclude trial courts from exercising their discretion to strike a section 12022.5 enhancement.

While this argument may seem compelling on its face, it fails to distinguish between the striking of an enhancement because of mitigating circumstances pursuant to section 1170.1, subdivision (h), and the striking or dismissal of an enhancement in the interest of justice pursuant to section 1385.   In People v. Price (1984) 151 Cal.App.3d 803, 199 Cal.Rptr. 99, the court upheld the trial court's authority to stay a three-year deadly weapon use enhancement for sex crimes pursuant to section 12022.3, despite the fact that section 12022.3 was not included in the list of enhancements found in section 1170.1, subdivision (h).   Unfortunately, the court in Price held that the power to strike encompasses a fortiori the power to stay, which is incorrect.   (Id. at p. 819, 199 Cal.Rptr. 99.)   Nonetheless, citing People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, the court held that “[s]ection 1170.1, subdivision (h) does not refer to the enhancement provided for in section 12022.3.   Thus, its explicit authorization of the striking of punishment does not extend to the sex crime enhancements.   However, the trial court did have authority to strike the punishment under section 1385.”  (Id. 151 Cal.App.3d at p. 818, 199 Cal.Rptr. 99.)   If we follow Price here, even the fact that the Legislature deleted section 12022.5 from section 1170.1, subdivision (h)'s list of sections which can be stricken when mitigating circumstances are present does not preclude a court's authority to strike under section 1385 in the interest of justice.

Neither is Price an aberration.   In People v. Sutton (1985) 163 Cal.App.3d 438, 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), the court also held a trial court had the authority to strike a section 12022.3 use of a deadly weapon enhancement based on the authority of section 1385.   Citing People v. Williams, supra, 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, the court stated:  “The court in Williams held that the mere use of mandatory language in a statute cannot alone indicate that section 1385 is inapplicable, but must be accompanied by ‘specific indication’ of intent to withhold discretion to strike.   The absence of section 12022.3 from the list of enhancements which may be stricken under Penal Code section 1170.1, subdivision (h), might seem to indicate a lack of discretion to strike pursuant to the rule of statutory construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), but this does not constitute ‘specific indication’ of intent to withhold discretion to strike under Williams.   On remand, therefore, the trial court must be afforded the opportunity to exercise its discretion to strike the three-year enhancement under ․ section 1385, if it so chooses.”  (Id. 163 Cal.App.3d at p. 446, 209 Cal.Rptr. 536.)

Thus the authority to dismiss or strike in the interest of justice under section 1385 is distinct from the authority to strike when mitigating circumstances are present under section 1170.1, subdivision (h).   The mere fact section 12022.5 has been deleted from section 1170.1, subdivision (h) does not mean the court did not retain the ability to strike under section 1385.

In his brief, defendant has provided us with a letter from the Attorney General's office dated March 23, 1989, sent to the Chairman of the Assembly Public Safety Committee concerning Assembly Bill No. 566, which in part amended section 1170.1, subdivision (h) by deleting reference to section 12022.5.   Referring to section 1170.1, the letter reads:  “Section 1170.1, providing the procedures for imposing sentence, expressly authorizes the court to strike the enhancement in section 12022.5 for use of a firearm if the court finds circumstances in mitigation and states its reason on the record.   AB 566 deletes the court's authority to strike the new, increased use enhancement of section 12022.5.  [¶] The bill does not, however, impose the same restriction upon the court's general authority under section 1385 to dismiss actions ‘in furtherance of justice.’   Given the length of the proposed enhancement, courts will probably seek to strike it in certain cases.   The result would ironically mean less punishment than is available under present law.   If the Legislature wishes to make the new enhancement truly mandatory, then it should also amend section 1385.”

While we realize this letter has no precedential value, it is helpful in determining legislative intent.   It was sent to the Chairman of the Public Safety Committee, where Assembly Bill No. 566 was initially assigned.   While the bill was amended once by the Assembly and twice by the Senate after the writing of this letter, none of the amendments adopted the Attorney General's recommendation that section 1385 also be amended if a trial court's discretion under section 1385 to strike a section 12022.5 enhancement was to be precluded.4

Accordingly, we hold that section 1170.1, subdivision (h) does not limit a trial court's authority under section 1385 to strike a section 12022.5 firearm use enhancement.   The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code.

2.   Subdivision (a) of that section provides:  “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”   Subdivision (b) provides:  “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under section 667.”

3.   Of course, we note that though the issue was not raised on appeal, the trial court was without jurisdiction to stay the section 12022.5 enhancement.

4.   In a petition for rehearing, the People have provided us with a synopsis of AB 566 dated August 29, 1989, from the Senate Committee on the Judiciary.   It states in part that:  “These enhancements [under section 12022.5] may, under current law, be struck by the court in the interests of justice.   This bill would provide that the enhancements shall never be stricken․ “.    .    .    .    .“Two sentencing restrictions are proposed in the case of firearm use:  a prohibition against plea bargaining, and a removal of the court's right to strike firearm enhancements imposed under P.C. Sec. 12022.5․”The synopsis was incorrect.  Section 1170.1, subdivision (h) was amended by AB 566, deleting section 12022.5 from the list of enhancements which could be stricken when mitigating circumstances are present.   The amendment did not affect the ability to strike in furtherance of justice under section 1385.Yet this misconception cannot substitute for an express limitation by the Legislature eliminating a trial court's discretion to strike a section 12022.5 enhancement in furtherance of justice under section 1385.   Such a limitation cannot be found in the amendment to section 1170.1, subdivision (h) which AB 566 gave rise to.   Had the Legislature intended to limit the applicability of section 1385, then either that section or section 12022.5 could easily have been amended.   The Legislature certainly knows how.  (See, e.g., section 1385, subd. (b).)

MOORE, Associate Justice.

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

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