PEOPLE v. McMAHAN (1992)

OPINION

STATEMENT OF THE CASE

This is a People's appeal pursuant to Penal Code section 1238, subdivision (a)(10).

On January 25, 1991, respondent Kevin Deon McMahan was charged by information filed in Kern County Superior Court with a violation of Penal Code 1 section 245, subdivision (a)(2).   The information also alleged that McMahan personally used a firearm during the commission of the offense within the meaning of section 12022.5 and section 1203.06, subdivision (a)(1).   The information further charged a violation of section 236 (false imprisonment) and a violation of section 460, subdivision 1 (burglary).   On February 22, 1991, the information was amended to add a violation of section 245, subdivision (a)(1).   McMahan entered pleas of not guilty to all charges.

McMahan's jury trial began on March 11, 1991, and ended on March 12 when the jury returned with its verdict.   The jury acquitted McMahan of all but the section 245, subdivision (a)(1) (assault with “an unloaded firearm”) ² allegation.   The jury also found the use allegation true.

On April 12, 1991, McMahan was sentenced to the midterm of three years.   The trial court struck the use enhancement.

The People filed their timely appeal on April 25, 1991.

STATEMENT OF FACTS

The offenses of which McMahan was convicted occurred on December 29, 1990, during a dispute with his ex-girlfriend, Stephanie Salcido, apparently over another man.   The altercation became physical.   During the fight, McMahan bit Salcido several times, hit her with the gun and his hands, “got” her on the floor and pinned her against the wall.   According to Salcido, McMahan threatened to kill her and played Russian roulette, pointing the gun at her head and pulling the trigger.   Salcido did not know the gun was loaded with an empty shell casing.   Following the fight, McMahan took a jacket belonging to Salcido and left.   Salcido followed McMahan to another apartment but left without the jacket.   This was not their first violent confrontation.

Salcido went to the hospital to receive treatment for her injuries.   Law enforcement was contacted and the instant charges filed.

McMahan, who testified in his own behalf, admits having the argument with Salcido but denies having a gun or hitting Salcido with one.   He claims he hit Salcido only with his hands.   There were three other individuals at the apartment besides Salcido and McMahan.   Two testified in McMahan's behalf, stating McMahan and Salcido did fight but that McMahan did not have a gun.   The third individual testified she saw McMahan hit Salcido with a gun.   None of the witnesses saw McMahan point the gun at Salcido or play Russian roulette.

DISCUSSION

The People contend the 1989 amendments to section 1170.1, subdivision (h) eliminated the authority of a sentencing court to strike a weapons use enhancement and therefore, the trial court acted in excess of its jurisdiction in sentencing McMahan.

 Prior to 1989, the trial court had the authority pursuant to section 1170.1, subdivision (h) to strike a section 12022.5 enhancement if it found sufficient circumstances in mitigation.   The decision to strike rested within the sound discretion of the trial court.   In 1989, the Legislature deleted section 12022.5 from the list of Penal Code enhancements which may be stricken in section 1170.1, subdivision (h).  (Stats.1989, ch. 1044, § 1, pp. 3214–3217.)   The intended effect of the deletion is explained in the legislative statement of purpose.   The Legislature wished to delete the existing authorization to “strike the additional enhancement involving the personal use of a firearm in the commission ․ of a felony․”  (Ibid.)   With this statement of purpose, the Legislature has made clear its intent to preclude trial courts from exercising their discretion to strike a section 12022.5 enhancement under section 1170.1, subdivision (h).  (See also People v. Dillon (1983) 34 Cal.3d 441, 467, 194 Cal.Rptr. 390, 668 P.2d 697 [deleting a provision of a statute indicates intent to change the law];  accord People v. Taylor (1978) 81 Cal.App.3d 973, 977, 146 Cal.Rptr. 821;  People v. Schmel (1975) 54 Cal.App.3d 46, 51, 126 Cal.Rptr. 317.)

Despite its expansive language, the amendment eliminates only the statutory authority to strike granted trial courts under section 1170.1.   The amendment does not purport to eliminate or restrict the authority of the court to strike or dismiss an enhancement in furtherance of justice pursuant to section 1385.   It is clear section 1385 grants such authority.  (People v. Burke (1956) 47 Cal.2d 45, 50–51, 301 P.2d 241.)   In order for an amendment to one statute to be construed as an intent to foreclose the exercise of discretion granted under another, the Legislature must clearly state that intention.  (See People v. Williams (1981) 30 Cal.3d 470, 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;  People v. Price (1984) 151 Cal.App.3d 803, 819–820, 199 Cal.Rptr. 99;  see also People v. Whigam (1984) 158 Cal.App.3d 1161, 1168–1169, 205 Cal.Rptr. 227;  People v. Lopez (1983) 147 Cal.App.3d 162, 165, 195 Cal.Rptr. 27.)

Our state Supreme Court in Williams made it clear that the use of mandatory language in an enhancement statute does not alone indicate a loss of discretion under section 1385;  there must be language of specific intention to withhold discretion to strike under section 1385.  (See also 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.)   No such language appears in either section 12022.5 or the revised section 1170.1, subdivision (h).

Sometimes the specific intention to withhold discretion under section 1385 can be found in a comparison of the two competing statutes.   For example, in People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the mandatory language of a later-enacted section 1203.06 (“Probation shall not be granted to” any person who uses a firearm during the commission of a robbery) directly restricted the trial court's authority under section 1385 to strike a weapon enhancement and place the defendant on probation.   Because section 1203.06 specifically relates to the limits of dismissal for purposes of probation and because it expressly precludes probation for defendants using a firearm in the commission of a robbery, a trial court may not strike the enhancement under section 1385 in order to grant probation, thereby avoiding the mandatory provisions of section 1203.06.   To hold otherwise would allow trial courts to order probation under a general statutory grant of authority when it is directly prohibited under another, more specific statute.

 Comparison of the two statutes here at issue paints a different picture, however.   The 1989 amendment to section 1170.1 eliminates the authority to strike a 12022.5 enhancement under section 1170.1, subdivision (h).   It does not expressly prohibit the striking of a weapon enhancement generally and it does not limit the trial court's authority to sentence.   It merely eliminates the use of section 1170.1 as authority to strike the 12022.5 enhancement for mitigating circumstances.³  The general authority to strike in the furtherance of justice, granted by section 1385, remains unscathed.⁴

The two statutory grants of authority are not mutually exclusive.   The authority granted in section 1385 is broader than that which had been granted under section 1170.1, subdivision (h).   Different standards are invoked.   The standard utilized in section 1385, “in furtherance of justice,” necessarily includes the interests of the public as well as the defendant.  (See People v. Harris (1976) 62 Cal.App.3d 859, 861, 133 Cal.Rptr. 352;  People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193.)   It allows consideration of a wide range of factors, some of which go beyond the definition of “circumstances in mitigation,” the standard utilized in section 1170.1, subdivision (h).   For example, the court may dismiss an action in the furtherance of justice when, although the discovery of procedural error would normally result in a retrial, the defendant has already served a substantial part of his sentence and new proceedings would be unfair to the defendant and costly for society.  (See In re Pfeiffer (1968) 264 Cal.App.2d 470, 70 Cal.Rptr. 831.)

Because an expressed or implied intent to eliminate the general authority granted trial courts under section 1385 cannot be found in the 1989 amendment to section 1170.1, subdivision (h), the trial court retains authority to dismiss the 12022.5 enhancement pursuant to section 1385 upon application of the appropriate standard.

Our analysis does not end here however.   Although we hold the trial court had the authority under section 1385 to strike the weapons enhancement, remand is necessary.

 At sentencing, the trial court stated its intention to strike the enhancement.   In its early analysis, the trial court talked about the circumstances of the case, the history of the relationship between the parties, the aggression of the victim, and the motive for reporting the assault.   It also acknowledged that the gun had been used as a club, not as a firearm.   However, based on incorrect information received from the probation officer, the trial court believed the source of its authority was section 1170.1, subdivision (h)—authority which no longer exists.

We are unable to determine from this record what the trial court's sentencing choice would have been had it understood the correct source of its authority and applied the appropriate legal standards governing its decision.   Because the trial court relied upon an invalid statutory authority when making its sentencing choice, and because the appropriate authority requires application of a different standard, we must remand for resentencing.

DISPOSITION

The judgment is reversed and remanded for sentencing.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   The jury modified the verdict form to read “unloaded Firearm” in place of “Other Than Firearm.”   The trial court interpreted this to mean the jury found McMahan used an unloaded gun to hit the victim and did not shoot or attempt to shoot the victim.

3.   Circumstances in mitigation are those circumstances which do not constitute a justification or excuse for the offense but which may properly be considered in reduction of the punishment.   Mitigating factors relate to the defendant and the offense.  (See People v. Adcox (1988) 47 Cal.3d 207, 269, 253 Cal.Rptr. 55, 763 P.2d 906.)

4.   We are aware of the recent opinion of the Sixth Appellate District, People v. Thomas (1992) 2 Cal.App.4th 533, 3 Cal.Rptr.2d 55, reaching a contrary conclusion.   The decision is not yet final;  a petition for review is currently pending before our state Supreme Court.   However, we note our disagreement with the Thomas decision on two points.   First, we do not believe the standards under section 1170.1, subdivision (h) and section 1385 are identical.   Second, we believe the panel reads too expansively the amendment's statement of legislative purpose.  (Stats.1989, ch. 1044, § 1, pp. 3214–3215.)

THAXTER, Associate Justice.

BEST, P.J., and VARTABEDIAN, J., concur.