PEOPLE v. THOMAS (1992)

Defendant Derrick Leon Thomas appeals from the judgment of conviction of one count of robbery (Pen.Code,1 §§ 211–212.5, subd. (b)).  Defendant pleaded guilty and admitted that he used a gun (§ 12022.5, subd. (a)), and the trial court sentenced him to five years, two years for the robbery plus the three-year use enhancement.   Defendant now challenges the trial court's denial of his motion to strike the use enhancement.   We hold that because of the amendment to section 1170.1, subdivision (h), the trial court did not retain discretion to strike the enhancement under section 1385.   Thus, we affirm the judgment for the reasons stated below.

Facts and Procedural Background

On January 7, 1990, defendant, then 18, and his 17–year–old companion Karl F., held up the clerk at the Swenson's ice cream store in downtown Palo Alto.   Defendant was holding a loaded .22 caliber gun, provided to him by Karl F., who had taken it from his mother without her knowledge.   The young men obtained about $160 in cash, which they divided evenly.   They fled the store on their bicycles and were apprehended by Palo Alto police minutes after the robbery.

A complaint was filed against defendant, charging him with robbery (§§ 211–212.5, subd. (b)) and alleging he used a firearm within the meaning of sections 12022.5, subd. (a) (three, four, or five year sentence enhancement for personal use of a firearm) and 1203.06 (probation ineligibility).   Defendant entered a negotiated plea conditional on the result of his motion to strike the enhancement pursuant to section 1385:  two year bottom, five year top if the motion was granted, five years if the motion was denied.

Defendant filed his motion to strike the enhancement on April 23, 1990.   In support of the motion defendant introduced the evaluation and report of a counselor who had interviewed him.   The counselor's conclusion was that the robbery was an isolated and impulsive action by defendant, who does not have an antisocial personality and who would be unlikely to commit another offense.   Defendant argued that the court had the power to strike the enhancement under section 1385, in spite of the Legislature's 1989 amendment to section 1170.1, subdivision (h) deleting section 12022.5 from a list of enhancements the court may strike.   The People argued that the trial court did not have the discretion to strike the enhancement because of the amendment to section 1170.1, subdivision (h).   The trial court denied the motion without indicating whether it was exercising discretion.

Discussion

In spite of the deletion of section 12022.5 from the list of enhancements a trial court may strike under section 1170.1, subdivision (h), does the trial court retain discretion to strike the enhancement under its general discretionary power found in section 1385?   We conclude that it does not.

Here defendant admitted a use enhancement described by section 12022.5, subdivision (a) which provides in pertinent part:  “[A]ny person who personally uses a firearm in the commission ․ of a felony shall, upon conviction of such felony ․ 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․”  Section 1170.1, subdivision (h), before its amendment in 1989, provided:  “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, 12022.5, 12022.55, 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.”   In 1989 the Legislature amended section 1170.1, subdivision (h) by removing section 12022.5 from the list of enhancements a trial court may strike.  (Stats.1989, c. 1044, § 1.)   Section 1385, subdivision (a) provides:  “The judge or magistrate may, either of his or her own motion or upon 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.”

 Stated simply, the issue is whether the trial court had discretion to strike the enhancement under section 1385 even though the Legislature amended section 1170.1 to remove the trial court's specific authority to strike it when mitigating circumstances existed.   We conclude the trial court did not have discretion to strike the enhancement.

First, we believe both sections 1170.1 and 1385 employ the same standard;  “in furtherance of justice” is equivalent to the presence of “mitigating circumstances.”   Although the same standard is used in both statutes, section 1170.1, subd. (h) is the more specific.   Section 1385 describes the court's general power to strike an unjust action;  subdivision (h) speaks to the trial court's specific ability to strike certain statutory enhancements when there are mitigating circumstances.   There is an apparent inconsistency between the statutes.   To the extent there is an inconsistency, the more specific statute would control.  (In re Thompson (1985) 172 Cal.App.3d 256, 262, 218 Cal.Rptr. 192.)  “ ‘Where a general and specific provision on a particular subject are inconsistent, the latter must take precedence over the former.’  [Citations.]”  (Ibid.)

 Furthermore, the Legislature's intent in amending section 1170.1, subdivision (h) to remove section 12022.5, is clear.   The amendment was part of the McClintock Firearms Act, and the import of the amendment was explained 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․  [¶] This bill would delete that authorization.”  (Stats.1989, ch. 1044, subdivision 1.)   We owe deference to this clear statement of legislative intent.   If we held to the contrary, that the amendment did not delete the trial court's authorization to strike the enhancement because of section 1385, we would render the Legislature's act a nullity.   An intent to change pre-existing law can be inferred from the mere act of amending the statute.  (Cf. People v. Alexander (1986) 178 Cal.App.3d 1250, 1261, 224 Cal.Rptr. 290.)

Our conclusion is consistent with the California Supreme Court's holding in People v. Tanner (1979) 24 Cal.3d 514, 518, 156 Cal.Rptr. 450, 596 P.2d 328.)   The issue in Tanner was whether the trial court could strike a firearm use enhancement under section 1385 and impose probation, in light of the mandatory language prohibiting probation in the later-enacted section 1203.06.  (Ibid.)  The pertinent language in section 1203.06 was:  “Probation shall not be granted to” any person who uses a firearm during the commission of a robbery.  (Ibid., fn. 1.)   Section 1385, of course, stated that the “[t]he judge or magistrate may ․ of his or her own motion ․ and in furtherance of justice, order an action to be dismissed.”   The power to dismiss an action historically was construed to include the power to strike an enhancement.  (Ibid.)

The court reasoned that the language of section 1203.06 was mandatory, and reflected a continuing legislative trend to ensure that courts imposed prison sentences and denied probation to persons using firearms in committing serious crimes.  (24 Cal.3d at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328.)   If the court had held section 1385's power was not limited by the no-probation provision, it would have rendered the 1975 amendments a nullity.  (Id. at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)   Also, section 1203.06 was specific, so in light of an inconsistency, it would control over the general provision of section 1385.  (Id. at p. 521, 156 Cal.Rptr. 450, 596 P.2d 328.)   The trial court had erred in striking the use finding and granting probation to defendant.  (Ibid.)

Because it had no authority to strike the use finding after the 1989 amendment to section 1170.1, subdivision (h), the trial court in the instant case correctly denied defendant's motion to strike the section 12022.5 enhancement.

The judgment is affirmed.

FOOTNOTES

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

ELIA, Associate Justice.

AGLIANO, P.J., and COTTLE, J., concur.