PEOPLE v. TANNER (1977)

We are confronted with the first impression question whether the trial court is empowered to strike a use of firearm allegation—found to be true by a properly instructed jury—in order to grant probation to an armed robber who, as a matter of law, is ineligible for probation under Penal Code,1 section 1203.06. The basic facts are not in dispute and may be summarized as follows:

On January 9, 1976, at about 3 a. m., respondent Tanner entered a 7–11 store in East Palo Alto. He looked at the night clerk, Peter Bishop, and walked behind the counter. Pointing a gun at the clerk, he said, ‘you know what's happening.’ When Bishop replied ‘it's all yours,’ Tanner instructed him to open the cash registers and floor safe and remove money from them. Bishop complied. Upon taking numerous dollar bills and a roll of quarters, respondent left the store.

During the robbery, respondent showed an unusual attitude indeed. He engaged in a conversation with Bishop, telling him that he need not worry; that he (Tanner) worked for 7–11 stores himself; and that Bishop should call the police, identify Tanner and ‘play it straight.’ On leaving, he reminded Bishop to turn in an alarm and notify the police.

After Tanner's departure, Bishop turned in an alarm, called the San Mateo County Sheriff, and described respondent's car. In response to a radio dispatch from the sheriff's office, Deputy Sheriffs Schweizer and Rosengart proceeded to the area of the robbery. Shortly thereafter, they spotted and stopped respondent's car. Tanner got out and was pat searched. During the course of the pat search, several bills were seen inside Tanner's coat pocket. Deputy Schweizer removed $41.05 in coins and currency from the pocket.

A subsequent search of respondent's car revealed an attache case containing an operable, but unloaded, revolver and some empty alcoholic beverage containers. While there was a smell of alcohol about him, respondent was not staggering nor was his speech slurred.

Tanner admitted to the deputies that he had robbed the 7–11 store, but claimed that he had done so in the line of duty as a security employee to test the security of the store. His employer, Jack Dyer, however, failed to corroborate respondent's story. While admitting that Tanner's job included surveillance of Bay Area 7–11 stores, Dyer insisted that at no time was Tanner told to carry a weapon or to shoplift any item. Further, the store in question was not a client of Dyer at the time of the robbery.

In his trial testimony, Tanner deviated from the version he had given to the police. While acknowledging that he had committed the robbery in question, Tanner explained that he did so in order to impress the owner of the 7–11 store and induce him to resubscribe to the discontinued security service offered by his employer, Dyer. At the trial Tanner also maintained that he thought the gun used in the commission of the robbery was inoperable, and that while he had been drinking on the night of the robbery, he was not intoxicated.

Respondent was charged with robbery in violation of section 211. It was further alleged that at the time of perpetration of the offense respondent was armed and did use a firearm, a .22 caliber revolver. Following a trial by jury, respondent was found guilty of robbery in the first degree. The jury also found that Tanner had used a firearm in the commission of the offense.

The trial court sentenced respondent to the Department of Corrections for the term prescribed by law. However, in contravention of section 1203.06, prescribing a mandatory prison sentence, the trial court suspended the execution of sentence and placed respondent on probation by striking the use allegation pursuant to section 1385 and by holding that section 1203.06 is unconstitutional insofar as it purports to invade the judicial function of sentencing.

On appeal, the People assail the order of the trial court on both counts. First, if is contended that section 1203.06 does not violate the doctrine of separation of powers and therefore is not subject to constitutional challenge. Second, it is maintained that the striking of the use allegation should be held improper because it is contrary to the clear meaning and intent of section 1203.06 prohibiting probation in cases of robbery committed with a firearm. In rebuttal, respondent, supported by amici curiae, argues that the trial court has inherent power to control the proceedings before it, and that the order striking the use allegation should be deemed a proper exercise of the court's inherent power of sentencing. In the alternative, it is contended that section 1203.06 is unconstitutional inasmuch as it purports to divest the trial court of its asserted inherent power of sentencing. Lastly, it is claimed that section 1203.06, which mandates a sentence of five years to life for individuals who use a firearm in the course of a robbery is cruel and unusual punishment prohibited by article I, section 17 of the California Constitution.

Constitutionality of section 1203.06: As appears above, the constitutionality of section 1203.06 is challenged on two main grounds: one, that it violates the constitutional doctrine of separation of powers by unlawfully interfering with the sentencing function of the court which—it is contended—emanates from the Constitution; two, that the mandatory sentence of five years to life to be imposed regardless of the circumstances of the individual case constitutes cruel and unusual punishment. As the ensuing discussion demonstrates, neither of these contentions has any merit.

To begin with, it bears emphasis that probation is not an absolute right to which a convicted person is entitled; rather, it is an act of grace and clemency (People v. Brasley (1974) 41 Cal.App.3d 311, 316, 115 Cal.Rptr. 910; Bennett v. Superior Court (1955) 131 Cal.App.2d 841, 845, 281 P.2d 285). More to the point, the cases underline that probation has no constitutional basis (In re Oxidean (1961) 195 Cal.App.2d 814, 817–818, 16 Cal.Rptr. 193; People v. Miller (1960) 186 Cal.App.2d 34, 8 Cal.Rptr. 578); and that the courts have no inherent power to grant probation (People v. Westoby (1976) 63 Cal.App.3d 790, 798, 134 Cal.Rptr. 97; People v. Clay (1971) 18 Cal.App.3d 964, 969, 96 Cal.Rptr. 213). On the contrary, the authority of a court to grant probation and suspend the execution of a sentence is wholly statutory. Consequently, the statute itself furnishes the measure of power which may thus be exercised (People v. Brown (1959) 172 Cal.App.2d 30, 34, 342 P.2d 410; People v. O'Donnell (1918) 37 Cal.App. 192, 197, 174 P. 102).

A case in point is People v. Hess (1951) 104 Cal.App.2d 642, 234 P.2d 65. In that case it was contended that the provisions of section 1203, which at that time—similar to section 1203.06—called for a mandatory prison sentence in the instances specified therein, were unconstitutional insofar as they restricted the right of the trial court to grant probation to a defendant who had been convicted of robbery. In rejecting that argument, the court stated: ‘Appellants urge that the courts of this state derive their powers and jurisdiction from the Constitution of California (art. VI, §§ 1, 5, 6), and that this jurisdiction can neither be restricted nor enlarged by legislative action. The right to enact laws making certain actions criminal and to designate the punishment for such crimes is vested exclusively in the Legislature. Clothed with the power to prescribe penalties for violations of criminal statutes, it necessarily follows that the legislative branch of the government has the power to declare that in certain of these cases, probation may not be granted. The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government. It does not impair, restrict nor enlarge upon the jurisdiction of the courts. The function of the courts is to determine the guilt or innocence of an accused. What disposition may thereafter be made by way of penalty is for the Legislature to determine.’ (Pp. 685–686, 234 P.2d p. 93, emphasis added. See to the same effect Stephens v. Toomey (1959) 51 Cal.2d 864, 869–870, 338 P.2d 182; People v. Perry (1964) 230 Cal.App.2d 258, 262–263, 40 Cal.Rptr. 829; People v. Orrante (1962) 201 Cal.App.2d 553, 559–566, 20 Cal.Rptr. 480). The conclusion reached in Hess has been reaffirmed in Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 488, 470 P.2d 617, 624, the Supreme Court stating that ‘subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’ (Emphasis added.)

We note that respondent's reliance on People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, and its progeny (i.e., People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481; In re Cortez (1971) 6 Cal.3d 78, 98 Cal.Rptr. 307, 490 P.2d 819; Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140; People v. Clay, supra, 18 Cal.App.3d 964, 96 Cal.Rptr. 213), is simply misplaced. In each of these cases the particular statute was held to be in violation of the doctrine of separation of powers because it called for the concurrence of the prosecutor (the executive branch of government) in a matter involving exercise of judicial power. By contrast, no consent of the district attorney is involved in this case where the dismissal is predicated on section 1385.

Moreover, the cases cited above emphatically acknowledge that the Legislature is empowered to control eligibility for probation, even to the extent to absolutely prohibit it. Thus, while Tenorio held that former section 11718 of the Health and Safety Code, which prohibited the trial court in a narcotics case from striking prior narcotics convictions except upon the motion of the district attorney, violated the constitutional precept of separation of powers, it also acknowledged that the Legislature could constitutionally remove the power to strike priors from the courts (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993). Besides, Tenorio relied heavily on the dissent in People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, in which Justice Schauer stated that ‘Certainly the Legislature could absolutely prohibit the granting of probation or parole to anyone convicted of a narcotics (or any other) offense, . . .’ (p. 653, 25 Cal.Rptr. p. 702, 375 P.2d p. 646; emphasis added). In Navarro, the court likewise pointed out that although the imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions, the Legislature may impose restrictions upon the exercise of those functions (7 Cal.3d p. 258, 102 Cal.Rptr. 137, 497 P.2d 481). Finally, relying on Tenorio and the dissenting opinion in Sidener, the court in Clay reiterated that “the Legislature, of course, by general laws can control the eligibility for probation, parole and the term of imprisonment, but it cannot abort the judicial process by subjecting a judge to the control of the district attorney.” (18 Cal.App.3d p. 968, 96 Cal.Rptr. p. 216.)

Respondent's alternative contention, that the five years to life punishment which is to be imposed mandatorily in the absence of the possibility of probation (even if the use allegation under section 12022.5 is stricken) constitutes cruel and unusual punishment is unfounded and must fail for two reasons: One, an identical argument was raised and rejected in People v. Morgan (1973) 36 Cal.App.3d 444, 446–449, 111 Cal.Rptr. 548 (see also People v. Westoby, supra, 63 Cal.App.3d 790, 134 Cal.Rptr. 97). Two, the question of cruel and unusual punishment has been prematurely raised by respondent. Judicial review must await an initial determination by the Adult Authority of the actual term in the individual case before the question of cruel and unusual punishment can be resolved (People v. Wingo (1975) 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 534 P.2d 1001; People v. Cameron (1975) 53 Cal.App.3d 786, 797–798, 126 Cal.Rptr. 44).

Striking of use allegation: In the foregoing discussion we have demonstrated that probation has no constitutional basis, the courts have no inherent authority to grant probation, and the exclusive power of the Legislature to define crimes and fix penalties carries with it the right to grant, restrict or deny probation by way of appropriate legislation. Therefore, the seminal issues awaiting adjudication are whether by enacting section 1203.06 the Legislature intended to make a prison term mandatory and deny probation to those who commit robbery by use of a firearm and/or whether the mandatory provisions of the statute may be circumvented by striking the use allegation pursuant to section 1385,² which confers broad discretion upon the trial court to dismiss the proceedings in furtherance of justice (cf. People v. Superior Court (1968) 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138).

Before analyzing the issues on the merits, we set out the basic principles governing the interpretation of statutes. We begin with the fundamental rule that in construing a statute, the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining the legislative intent, we turn first to the words used in the statute to find the answer. The words, however, may not be read in isolation, but rather in context, keeping in mind the nature and obvious purpose of the statute. It is also elementary that the various parts of the statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. Finally, it bears emphasis that the legislative intent may be ascertained, not only by considering the words used but also by taking into account other matters, such as the object in view, the evils to be remedied, the legislative history, public policy and contemporaneous construction (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 589, 123 Cal.Rptr. 442; Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110; Estate of Jacobs (1943) 61 Cal.App.2d 152, 155, 142 P.2d 454). We believe that when examined in the light of these principles, the legislative history of sections 1203 and 1203.06, the clear and unequivocal language of section 1203.06, and the contemporaneous construction forwarded by both the legislative and executive branches in explaining the objectives to be attained and the evils to be remedied by section 1203.06 leave no shred of doubt that by enacting section 1203.06 the Legislature intended to impose a mandatory prison sentence without the possibility of probation upon criminals who used a firearm in the commission of the serious offenses listed in the section.

The legislative history of section 1203, of which section 1203.06 is but a part, may be summarized briefly as follows: Prior to 1923, section 1203 did not refer to mandatory sentencing. In 1923, it was amended to prohibit the granting of probation in cases in which the criminal used a deadly weapon or was armed with a deadly weapon during the course of a murder, robbery, burglary, or forcible rape; or where great bodily injury was inflicted; or where there was a prior conviction of one of the above felonies; or for certain political misconduct (Stats. 1923, ch. 144, § 1, p. 291).

The 1927 amendment broadened the prohibition against granting probation to any defendant who in the commission of any felony had used or been armed with a deadly weapon; or who had inflicted great bodily injury or torture; or to a defendant previously convicted of a felony. (Stats. 1927, ch. 770, § 1, p. 1493.)

In 1931, a specific list of crimes for which probation could not be granted was reemployed, listing 16 felonies, if the defendant was armed or used a weapon (Stats. 1931, ch. 786, § 1, p. 1633).

Until 1957, the law remained substantially the same. In that year, the statute was amended, repeating the absolute prohibition against probation for several listed offenses, but allowing a ‘departure from the declared policy’ against probation in unusual cases involving, inter alia, robbery, burglary or arson (Stats. 1957, ch. 2054, § 1, pp. 3649–3650).

In 1965, an amendment retained the 1957 language and added a paragraph allowing probation in all other previously prohibited cases ‘in which the interests of justice would be best served . . .’ and ‘with the concurrence of the district attorney . . ..’ (Stats. 1965, ch. 1720, § 1, pp. 3867–3870.)

In 1971, People v. Clay, supra, 18 Cal.App.3d 964, 96 Cal.Rptr. 213, invalidated the 1965 provision requiring the concurrence of the district attorney.

In 1975, the Legislature deleted the clause struck by People v. Clay, supra. The amendment specified several situations in which probation shall not be granted except in unusual cases where the interests of justice would best be served, including armed robbery (subd. (d)). The Legislature also modified subdivision (e), requiring the court to specify the circumstances indicating that the interests of justice would be best served when probation is granted.

At the same time the Legislature added section 1203.06, which provides in mandatory terms that ‘Notwithstanding the provisions of Section 1203:

‘(a) 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 used a firearm during the commission or attempted commission of any of the following crimes: . . . [¶](iii) Robbery, in violation of Section 211.’ (Emphasis added.)

The statute further provides that ‘The existence of any fact which would make a person ineligible for probation under subdivision (a) shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.’ (Subd. (b)(1).) Also, ‘As used in subdivision (a) ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.' (Subd. (b)(3).) (Stats. 1975, ch. 1004, § 2.)

The statutory language is thus plain and unequivocal that where, as in the case at bench, the jury finds that the defendant used a firearm in the commission of robbery, the granting of probation is barred without exception, and the defendant is subject to a mandatory prison sentence.

In concluding that by the enactment of section 1203.06 the legislative intent and objective was to discontinue the existing practice of releasing violent criminals using firearms on probation and to eliminate that possibility once and for all in connection with felons who seriously endangered the lives of others by using a firearm in the commission of the specified crimes, we are greatly aided by the contemporaneous construction given the legislation by officials of the legislative and executive branches. To begin with, we refer to a staff memorandum prepared for the Senate Committee on Judiciary which states that Senate Bill 278 (in which the 1975 amendments to § 1203 were made and § 1203.06 was introduced), ‘Prohibits, without exception, the granting of probation to persons who have carried or used firearms, in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice (paras. (1) & (2), subd. (d), Sec. 1203, Pen. C.).’ (Emphasis partially added.) This is in perfect harmony with the opinion of the legislative counsel that ‘This bill would revise these provisions [former law] so that (1) probation and suspension of sentence would be denied, without any exception in unusual cases in the interest of justice, to any person who uses a firearm during the commission of various felonies, including . . . robbery, . . .’ (Legislative Counsel's Digest to Stats. 1975, ch. 1004).

The meaning and purpose of Senate Bill 278 was further explained by its author. In a letter written to Governor Brown urging him to sign the bill into law, Senator Deukmejian pointed out that the bill makes a prison sentence mandatory and precludes the granting of probation in cases where the offender uses a firearm in the commission of certain crimes, and also that the certainty of punishment serves as a significant deterrent to prevent the commission of serious felonies.³

Another important series of documents which shed light on the objective of section 1203.06 are the letters of the Attorney General addressed to the members of, and the consultant to, the Assembly Criminal Justice Committee and to the members of the State Assembly. These letters advise that ‘Senate Bill 278 mandates that persons convicted of certain violent crimes in which they use . . . a firearm actually be committed to state prison. It does this by removing the trial court's authority to grant probation in such cases' (emphasis added), and urge that the adoption of the bill is needed because under then existing law probation was too often granted to persons who used firearms during the course of such violent crimes as homicide, robbery and rape, and that the granting of probation in such cases seriously thwarts the work of law enforcement and weakens the deterrent effect of the criminal law.

Lastly, and more importantly, after signing the bill into law, Governor Brown issued a press release in which he explained the impact and meaning of the legislation, as follows: ‘By signing this bill, I want to send a clear message to every person in this state that using a gun in the commission of a serious crime means a stiff prison sentence. [¶] Whatever the circumstances, however eloquent the lawyer, judges will no longer have discretion to grant probation even to first offenders. This may not rehabilitate nor get at the underlying causes but it will punish those who deserve it. The philosophy of this bill is based not on sociology or Freudian theory, but on simple justice. [¶] Recent events underscore the appropriateness of swift and sure punishment for those who use guns to commit crimes.’ (Emphasis partially added.)

Despite the clearly expressed intent of the Legislature barring probation in absolute terms and without any exception in case the robbery was committed by use of a firearm, respondent and amici still insist that the granting of probation in the instant case should be held proper and the order of the trial court should be sustained. In effect, respondent argues that the finding of use of a firearm is a sine qua non to the prohibition of probation (§ 1203.06, subd. (b)(1)); that in the instant case the jury finding relating to the use of a revolver was properly stricken under section 12022.5 (People v. Dorsey (1972) 28 Cal.App.3d 15, 104 Cal.Rptr. 326); and that the striking of the use allegation under this latter section has ipso facto eliminated the use allegation also for the purpose of probation under section 1203.06, subdivision (b)(3). In addition, it is asserted that in the absence of an explicit provision in section 1203.06 proscribing the dismissal of actions under section 1385, this latter section, which clothes the trial court with discretion to dismiss the proceeding in the interest of justice, takes precedence over section 1203.06 and governs the outcome of this case. This argument is untenable on both counts.

In People v. Dorsey, supra, upon which respondent and amici primarily rely, defendant was convicted of second degree murder and assault with a deadly weapon, and the allegation that defendant had used a firearm in the commission of the crimes was also found to be true. Section 12022.5 provides in cogent terms that where it is found by the trier of fact that a person used a firearm in the perpetration of any of the enumerated crimes, an additional five-year incarceration period must be added to the punishment. Pointing out that the imposition of sentence and the exercise of sentencing discretion are fundamentally judicial functions and that, subject to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting punishment to the offender, the Dorsey court held that despite the mandatory language of section 12022.5 the trial court was authorized to strike the use allegation pursuant to section 1385 for the purpose of sentencing in the absence of a contrary legislative intent (pp. 17–19, 104 Cal.Rptr. 326).

It is clear that in spite of its broad language regarding the scope of judicial discretion in dismissing the proceeding, Dorsey fails to support respondent's position and is clearly distinguishable from the case at bench. In the first place, Dorsey stands only for the proposition that the use allegation under section 12022.5 may be stricken in an appropriate case for the purpose of sentencing. Even if the striking of the use allegation for the purposes of section 12022.5 may not be challenged under Dorsey and the new statutory enactment adopted pursuant thereto,⁴ it is axiomatic that the striking of a prior or use allegation for one purpose, does not render it valid and effective for another. This is demonstrated by People v. Burke (1956) 47 Cal.2d 45, 51, 301 P.2d 241, 244, where the court underlined that ‘The striking or dismissal of a charge of prior conviction (regardless of whether it has or has not been admitted or established by evidence) is not the equivalent of a determination that defendant did not in fact suffer the conviction [citations]; such judicial action is taken . . . ‘for the purpose of sentencing’ only and ‘any dismissal of charges of prior convictions . . . does not wipe out such prior convictions or prevent them from being considered in connection with later convictions' [citation].’ (Emphasis added; see also People v. Coyle (1948) 88 Cal.App.2d 967, 973–974, 200 P.2d 546.) It follows that while the striking of the use allegation may be deemed valid under section 12022.5 in order to prevent an additional five-year incarceration, it does not affect (much less eliminate) the jury's factual finding of use of a firearm for the purpose of prohibiting probation under section 1203.06. In the second place, the Dorsey holding is predicated on the premise that the Legislature failed to clearly express its intent that a section 12022.5 finding was not subject to dismissal under section 1385. As amplified below, in the case at bench the Legislature did expressly manifest its intent in the statute itself.

This leads us to the final issue of the case, namely, whether section 1385 has an overriding effect on section 1203.06 so as to empower the trial judge to strike a use allegation in the interest of justice and thereby frustrate the legislative intent expressed in section 1203.06. For the reasons which follow, we hold that section 1385 must yield to the legislative mandate espoused in section 1203.06, and that the trial court, therefore, has no power to circumvent, thwart, or stultify the legislative intent expressed in section 1203.06.

First, we refer to the simple and unquestionable fact that while section 1385 is a general statute which embraces the whole proceeding, section 1203.06 is a special enactment which is limited solely to the stage of sentencing and deals merely with the narrow issues of whether in the unique situation where the offender uses a firearm in the course of the commission of certain aggravated felonies probation may be granted, and whether in such instances the execution or imposition of sentence may be suspended. It is, of course, well settled that a general provision is controlled by one that is special, the latter being treated as an exception to the former. As a consequence, a specific provision relating to a particular subject will govern in respect to that subject as against the general provision, even though the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate (Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505; Bozaich v. State of California (1973) 32 Cal.App.3d 688, 697, 108 Cal.Rptr. 392).

Second, and more to the point, section 1203.06 is not an isolated provision, but rather a complementary part of section 1203, and therefore the two sections must be read together in order to divine the legislative intent and to decipher their true meaning (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 698, 91 Cal.Rptr. 585, 478 P.2d 17; Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d 222, 110 Cal.Rptr. 144, 514 P.2d 1224). When so construed, the 1975 amendments to section 1203 make it indisputable that while the trial court is authorized to grant probation in unusual cases, in the interest of justice where the offenses falling within the section were committed by use of a deadly weapon, where the offender uses a firearm in the commission of the crimes, such authority of the trial court terminates.⁵ The meaning of this statutory language is plausible and unmistakable. It gives rise to the irrefutable inference that the Legislature did consider whether or not probation may be granted in the interest of justice, as provided by section 1385, in the event the offender used a deadly weapon and/or a firearm in the commission of the enumerated felonies, and by a deliberate choice determined that while criminal offenders using a deadly weapon other than a firearm may be excepted from the mandatory prison term and be released on probation in unusual cases where the interest of justice is furthered thereby, those who use a firearm, an especially dangerous type of deadly weapon, are precluded from the privilege of probation without any exception and regardless of the circumstances of the offense and offender.⁶

The order (1) striking the finding of the jury that at the time of offense charged in the information respondent used a firearm, and (2) suspending execution of sentence and granting probation to respondent is reversed with directions to the trial court to execute the sentence to state prison previously imposed.

FOOTNOTES

FN1. Unless otherwise indicated, all references will be made to the Penal Code..  FN1. Unless otherwise indicated, all references will be made to the Penal Code.

2.  Section 1385 provides that ‘The court may either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of 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.’ (Emphasis added.)

3.  Pertinent excerpts from the letter read as follows:‘This bill mandates that criminals convicted of certain serious felonies, and who were armed with a firearm during the commission of such crimes, be sentenced to state prison.‘This measure will tell the courts that a serious crime committed with a gun precludes the granting of probation to the criminal involved. It puts all such crimes on an equal basis, and prescribes that a prison sentence is mandatory.’‘I sincerely believe that certainty of punishment is a significant deterrent to certain criminal acts, and that this is especially true when a person considers the option of using a firearm during a planned robbery or other serious felony.’ (Emphasis added.)

4.  Amended section 12022.5, effective July 1, 1977, provides that ‘Any person who uses a firearm in the commission or attempted commission of a felony, upon conviction of such felony, shall, in addition to the punishment prescribed for the felony of which he has been convicted, be punished by imprisonment in the state prison for a period of two years. Such additional period of imprisonment shall commence upon expiration or other termination of the sentence imposed for the felony of which he is convicted and shall not run concurrently with such sentence. However, if the court determines that there are circumstances in mitigation of the punishment prescribed, the court may strike the additional punishment, provided that reasons therefor are stated on the record.’

5.  The relevant parts of section 1203 as amended in 1975 set out as follows:‘(d) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:‘(1) Unless he had a lawful right to carry a deadly weapon, other than a firearm, at the time of the perpetration of the crime or his arrest, any person who has been convicted of arson, robbery, burglary, burglary with explosives, rape with force or violence, murder, assault with intent to commit murder, attempt to commit murder, trainwrecking, kidnapping, escape from the state prison, or a conspiracy to commit one or more of such crimes and was armed with such weapon at either of such times.‘(2) Any person who used or attempted to use a deadly weapon, other than a firearm, upon a human being in connection with the perpetration of the crime of which he has been convicted.’ (Emphasis added.)‘(e) When probation is granted in a case which comes within the provisions of subdivision (d), the court shall specify the circumstances indicating that the interests of justice would best be served by such a disposition.’

6.  As is evident from the factual summary of the case, respondent's actions can be described as bizarre—perhaps pathetic.We can empathize with the probation officer, the investigating detective and the trial judge, all of whom considered respondent to be something less than the classic armed robber. We can further appreciate the strong urge to render individualized justice as expressed in the trial judge's comments at the time of sentence. As we have pointed out, however, the power to determine crimes and to fix punishment is—subject to the cruel and/or unusual punishment limitations—exclusively a legislative function. When the Legislature has spoken as clearly as it has in section 1203.06, judicial sociology must surrender to the constitutional mandate of separation of powers.

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.