PEOPLE v. FALCONER (1992)

Appellant was convicted of robbery, and of an enhancement for the personal use of a firearm during the commission of the offense under Penal Code 1 section 12022.5.   He contends the trial court erred at sentencing, when it ruled that it had no discretion to strike the firearm use enhancement;  he claims the trial courts retain discretion to strike such enhancements under section 1385, in the interests of justice.

 While we recognize the district courts of appeal are in conflict on the point and our Supreme Court is currently considering this very issue, we join the Sixth District in holding that the Legislature's 1989 repeal of the operative language in section 1170.1, subdivision (h) (section 1170.1(h))—which had specifically allowed for the striking of such enhancements—deprived the trial courts of the authority to strike these enhancements at sentencing.   (Cf. People v. Thomas (1992) 2 Cal.App.4th 533, 537, 3 Cal.Rptr.2d 55, review granted [Per the Sixth District, trial courts do not retain authority to strike such enhancements following the Legislature's repeal of the relevant language from section 1170.1(h).];  People v. McMahan (1992) 4 Cal.App.4th 205, 211, 6 Cal.Rptr.2d 44, review granted [Per the Fifth District, trial courts retain such authority under section 1385.];  People v. Prieto (1992) 5 Cal.App.4th 623, 628, 6 Cal.Rptr.2d 921, review granted [Per the Fourth District, Division Three, trial courts retain this authority.];  People v. Ramirez (1992) 5 Cal.App.4th 617, 621–622, 6 Cal.Rptr.2d 917, review granted, ––– Cal.4th ––––, 10 Cal.Rptr.2d 85, 832 P.2d 586 [same].)

I. FACTS AND PROCEDURAL HISTORY

Appellant and his confederates robbed a gas station cashier and a coworker of about $1,800;  appellant used a gun during the robbery, pointing it at the victims;  as appellant took the money and turned to leave he told the victims, “ ‘You guys are lucky.’ ”   However, when appellant was apprehended shortly after the robbery, the gun was not loaded.

Appellant entered a plea of no contest;  although there were no binding promises made, he stated it had been indicated that the court would not impose a total sentence of more than five years, on the robbery charge and the three-year gun use enhancement together.

At sentencing, appellant urged the trial court to strike the three-year section 12022.5 enhancement.   The trial court refused to do so, opining that the Legislature's repeal of the authority to strike such an enhancement, by the 1989 amendment to section 1170.1(h), removed its power to do so;  the trial court accepted the prosecutor's argument that “This is a use-a-gun-go-to-prison kind of case.”   The trial court, therefore, imposed a two-year lower term for robbery plus the consecutive section 12022.5 enhancement, for a total of the previously indicated five years.

II. DISCUSSION

We affirm.   When the Legislature amended section 1170.1(h), it accomplished its objective of removing the authority by which trial courts had sometimes stricken gun use enhancements otherwise mandatorily imposed under section 12022.5.   The trial court correctly concluded it lacked the authority to strike the section 12022.5 enhancement, following the 1989 amendment to section 1170.1.

Appellant relied in his opening brief upon a decision by the Fourth District, Division Three which held to the contrary.   That decision has been ordered not to be published in the official reports.

Subsequently, the Fourth District, Division Three adhered to its previously stated position in two more published opinions;  the Fifth District joined this view as well.   However, the Sixth District concluded that by its 1989 amendment of section 1170.1(h), the Legislature had removed the authority for a court to strike such gun use enhancements.

Faced with this continuing dispute in published opinions by the Fourth District, Division Three and other districts, our Supreme Court has now granted review in cases stating both conclusions;  we recognize that our Supreme Court's ultimate decision may someday govern in this case as well.   However, we are now required to choose between the alternatives previously stated by the other districts;  we believe that, while the matter is perhaps not free from all possible doubt, the Sixth District's position represents the better view.   We briefly recapitulate the reasoning which has led us to this conclusion.

Section 12022.5, subdivision (a) provides, in relevant part, that “any person who personally uses a firearm in the commission ․ of a felony shall, ․ in addition and consecutive to the punishment prescribed for the felony ․, be punished by an additional term of imprisonment in the state prison for three, four, or five years․”  (Emphasis added.)

Despite the seemingly mandatory wording of section 12022.5, there was—prior to 1989—a loophole.   Section 1170.1(h), prior to its amendment in 1989, provided in pertinent part:  “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in [section 12022.5] 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.”  (Stats.1988, ch. 1487, § 2, p. 5274, emphasis added.)

In 1989, the Legislature closed this loophole.   It did so, as part of the McClintock Firearms Act, by deleting the reference to section “12022.5” in section 1170.1(h), so that it now does not give the courts any authority to strike the mandatory section 12022.5 enhancements.  (Stats.1989, ch. 1044, § 1, No. 8 West's Cal.Legis.Service, p. 3217.)   The 1989 legislative amendment clearly removed the courts' authority to strike mandatory section 12022.5 enhancements, according to its “ ‘plain meaning.’ ”  (See Kimmel v. Goland (1990) 51 Cal.3d 202, 208–209, 271 Cal.Rptr. 191, 793 P.2d 524;  Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.)

Appellant, however, contends that, notwithstanding the plain meaning of the 1989 amendment and the clear legislative intent to the contrary, the trial courts retain this authority under the general language of section 1385, subdivision (a), which provides in pertinent part:  “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.”   In its bluntest essence, appellant's argument is that the Legislature's action by the 1989 amendment was a nullity because the Legislature did not also change the general language of section 1385, as well as the specific language of section 1170.1(h).   We disagree;  such an interpretation is inconsistent with the plain meaning of the 1989 amendment, and is completely at odds with the relevant legislative history and the proper rules of statutory interpretation.

 The legislative history shows that the objective of the 1989 amendment to section 1170.1(h) was to remove the trial courts' authority to avoid imposition of section 12022.5 enhancements for gun use.  “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]․  [¶] This bill would delete that authorization.”  (Legis.Counsel's Digest, Assem.Bill No. 566, subd. (1), Stats.1989, ch. 1044, No. 8 West's Cal.Legis.Service, p. 3214, emphasis added.)   We must interpret the statute in accord with the intent of the Legislature.  “The objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration in its interpretation.”  (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 426, 261 Cal.Rptr. 384, 777 P.2d 157, internal quotation marks and brackets omitted;  accord, In re Marriage of Morrison (1978) 20 Cal.3d 437, 447 and fn. 6, 143 Cal.Rptr. 139, 573 P.2d 41;  Roland Co. v. Walling (1946) 326 U.S. 657, 671, 66 S.Ct. 413, 419, 90 L.Ed. 383 [“This purpose remains the key to the meaning of the words․”];  American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 485–486, 255 Cal.Rptr. 280.)

 It is also obvious that the Legislature's action by such an amendment was intended to effect a substantive change in the prior law, not merely continue it essentially unaltered.   As Justice Grodin aptly explained in In re Lance W. (1985) 37 Cal.3d 873, 887, 210 Cal.Rptr. 631, 694 P.2d 744:  “The general rule is that courts assume from a new enactment a purpose to change existing law.”   This rule of construction, when it is in accord with evidence of the relevant legislative intent, should prevail over any claim that the amendment failed to also properly effect an implied amendment of other general statutes.  (See id. at pp. 889–890, 210 Cal.Rptr. 631, 694 P.2d 744.)

 A contrary holding would render nugatory the Legislature's obvious objective of changing the existing law by statutory amendment.   We may not adopt an interpretation which would render the Legislature's action mere surplusage, a nullity, or an absurd and useless act.  “Interpretive constructions which render some words surplusage, defy common sense, or lead to mischief or absurdity, are to be avoided.”  (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)   The Legislature clearly expressed its intent to remove the statutory authority by which trial courts had previously been authorized to avoid imposing section 12022.5 enhancements.  “These [legislative] objectives would be defeated if we were to accept [appellant's] interpretation.”   (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 987, 4 Cal.Rptr.2d 837, 824 P.2d 643.)

Appellant's argument is also inconsistent with People v. Tanner (1979) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328, in which our Supreme Court held that section 1385 could not be employed to evade the mandatory language of section 1203.06, which barred the granting of probation for certain listed felonies:  “Finally, whereas section 1385 is general in nature, relating to the broad scope of dismissal, section 1203.06 [like section 12022.5 and section 1170.1(h) ] is specific, relating to the limited power of dismissal [in a particular circumstance]—the very matter at issue.   Section 1203.06 [like section 12022.5 and section 1170.1(h) ] is the later enactment, adopted by the Legislature in response to the particular problem at hand.   A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates.   [Citation.]”

 Under People v. Tanner, we conclude that where the Legislature has made a specific statutory response to a particular problem—here, the closing of the statutory loophole which had allowed courts to avoid imposing mandatory section 12022.5 enhancements—the general language of section 1385 may not be employed to frustrate the statutory scheme.  (See also People v. Williams (1981) 30 Cal.3d 470, 482–484, 179 Cal.Rptr. 443, 637 P.2d 1029 [Reaffirming Tanner as requiring judicial deference to a specific, later-enacted legislative amendment rather than the general language of section 1385, but finding no specific legislative enactment or intent on the facts of that death penalty case.].)   As interpreted by our Supreme Court, section 1385 does not prevail here because section 1385—unlike section 1170.1(h)—does not contain a provision stating that it will control “Notwithstanding any other provision of law”;  and section 1385's vague permissive language cannot trump the clearly expressed will of the Legislature in a particular instance, embodied in a specific and later amendment designed to control the trial courts' general exercise of discretion.²

Finally, we do not believe it would be proper to frustrate the clearly expressed will of the Legislature (and, acting through the Legislature, the People of our state) in this matter.   While we recognize that giving effect to the Legislature's 1989 amendment may in some degree impair the prerogatives of the courts to decide sentencing issues for themselves, this modest impairment is one naturally arising from any statutory scheme which seeks to restrain total discretion in sentencing.   The Legislature may rightly judge that the modest gain to be achieved by the occasional striking of a gun use allegation, in the rare case where this would be a proper response to strongly mitigated circumstances and in the interest of justice, is outweighed by the value of consistency and predictability inherent in the amended statutory scheme.   We will not substitute our views for that of the Legislature here.  (See People v. Tanner, supra, 24 Cal.3d at pp. 518–520, 156 Cal.Rptr. 450, 596 P.2d 328.)

III. DISPOSITION

The judgment of conviction is affirmed.

FOOTNOTES

FN1. All subsequent statutory references are to the Penal Code..  FN1. All subsequent statutory references are to the Penal Code.

2.   At oral argument, appellant objected that the Legislature's action had deprived the trial courts of the ability to dismiss a firearm enhancement allegation following a hung jury.   We need not address that question here, but note that the Legislature has the power to prevent dismissal of such allegations.   The charging and litigating of criminal allegations, including a decision to dismiss such allegations, is primarily a matter confided to the discretion of the prosecution, not the courts.   (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052, 265 Cal.Rptr. 486.)

PETERSON, Associate Justice.

SMITH, Acting P.J., and BENSON, J., concur.