PEOPLE v. KUWATA (1993)

This is a People's appeal from an order striking an admitted Penal Code section 12022.1 “on bail” enhancement.¹  Respondent Toshi Kuwata plead guilty to second degree burglary with an admission he had been released on bail in another matter at the time of the offense.  (§§ 459, 460, 12022.1).   We hold that the trial court was not authorized by section 1385 to strike the admitted section 12022.1 enhancement or strike or stay the punishment prescribed by the admitted allegation.

During the early morning hours of December 19, 1991, respondent, who was on bail in another matter at the time, was arrested on the roof of an Oxnard business.   He had chopped a hole in the building's roof and activated the silent alarm when he put his head inside to look around.   Respondent admitted intending to enter the business to commit theft.

Respondent entered his plea and admission in return for a trial court commitment, over the People's objection, that it would impose a consecutive term for the burglary and strike the “on bail” enhancement.   The trial court indicated that if it could not strike the punishment for the enhancement, respondent would be entitled to withdraw from the negotiated disposition.

At sentencing, the trial court stated it had read and considered the probation report.   It disclosed that respondent, who was 17 years of age at the time of the offense, had been arrested for the unlawful driving or taking of a motor vehicle, receiving stolen property and automobile burglary in February 1991, and for truancy in March 1991.   He was also arrested in May 1991 following a gang-related drive-by shooting, after which he was found unfit to be tried as a juvenile and convicted by plea of guilty to shooting at an inhabited dwelling house.   He was sentenced to five years in prison and ordered to be housed at the California Youth Authority.   Following his arrest in the instant matter, while housed at the Clifton Tatum Center, he attempted to escape by use of force and was convicted thereof.   The probation officer indicated that respondent had sustained a fractured spine a year earlier.   Respondent told the probation officer that he had trained daily to be a professional boxer until he suffered the back injury, and since all his friends were involved in sports, as he had been, he began associating with the wrong crowd.

Following discussion as to whether the trial court had authority to strike the “on bail” enhancement, the trial court noted that respondent had been involved in the school athletics program until he sustained the injury which precluded his further participation in sports and this “had a very, very serious impact on him․”   The trial court further noted that respondent then began to associate with “the wrong people” and began “to have substantial conflicts with his father, ․ which apparently had the effect of further alienating him, and so in a relatively brief period of time became a one-man crime wave.”   The trial court concluded:  “[T]his is an extremely young man.   This is a young man who has an extensive criminal record, I don't deny that, but it's a spurt.   It's sort of a—literally a relatively short period of totally aberrant behavior.  [¶] In my view I think that qualifies in the interest of justice.   That is to say ․ this man is extremely young, this man is—has been in my view traumatized by a series of events which he found, if not difficult, impossible to deal with.   I think he was looking for a new kind of acceptance when he couldn't be involved in athletics.   He made some bad judgments.  [¶] I don't believe, in all due respect, that the out on bail allegation[ ] has any bearing with respect to this defendant․  [¶] ․ To add two additional years to his sentence does not appear to me to be in the interest of justice.”   The trial court ordered the sentence for burglary to be served consecutively to the five-year term previously imposed in the other matter and struck the “on bail” enhancement pursuant to section 1385.²

Section 12022.1, subdivision (b) provides:  “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.”

Section 1170.1, subdivision (h) provides that the court may strike the punishment for 13 enumerated Penal Code and Health and Safety Code enhancements if it determines that there are circumstances in mitigation of the additional punishment and states its reasons on the record.  Section 12022.1 is not one of the enumerated enhancements in section 1170.1, subdivision (h).  Under the doctrine of Expressio unius est exclusio alterius “[m]ention of one thing implies exclusion of another ․ if [a] statute specifies one exception to a general rule ․ other exceptions ․ are excluded.”  (Black's Law Dict. (5th ed. 1979) p. 537, col. 2;  see In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744.)   The absence of section 12022.1 from section 1170.1, subdivision (h) is significant.   When considered with the mandatory language, “shall be served consecutive,” the omission is glaring and compels the conclusion that a trial court is not authorized to strike an “on bail” enhancement pursuant to section 1385.

Section 1385 does not, by its terms, expressly preclude its application to strike an “on bail” enhancement.   However, as indicated, the omission of section 12022.1 from the enumerated enhancements in section 1170.1 subdivision (h) indicates that the Legislature did not intend to authorize a section 1385 dismissal of an “on bail” enhancement.  “[I]t is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”  (People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)³  The purpose of the section 12022.1 enhancement is “to penalize recidivist conduct with increased punishment.”  (People v. McClanahan (1992) 3 Cal.4th 860, 868, 12 Cal.Rptr.2d 719, 838 P.2d 241.)   The “mandatory” nature of the enhancement has been recognized.  (People v. Garrett (1991) 231 Cal.App.3d 1524, 1528, 283 Cal.Rptr. 87;  People v. Baries (1989) 209 Cal.App.3d 313, 323, 256 Cal.Rptr. 920.)   In People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, our Supreme Court held that the mandatory “shall” provision of section 1203.06 “․ may not be avoided by employing section 1385 to strike either the allegations of the complaint or the findings of the jury.”  (Id., at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328.)   So here.   When admitted or found to be true a trial court has no section 1385 authority to strike an admitted section 12022.1 enhancement or strike or stay the punishment therefor.

The Legislature has said that a defendant who admits or is found to come within section 12022.1 shall serve “․ an additional two years in state prison which shall be served consecutive to any other term imposed by the court.”  (§ 12022.1, subd. (b).)  Were we to hold that section 1385 gives the trial court discretion to strike an admitted “on bail” allegation or strike or stay section 12022.1 punishment, we would have to erase the word “shall” and substitute the word “may.”   This theoretical “․ revision of the statute is not within the legitimate function of an appellate court.”   (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271, 1 Cal.Rptr.2d 333.)

The matter must be remanded to permit respondent the opportunity to withdraw from the unauthorized disposition.  (People v. Gordon (1991) 229 Cal.App.3d 1523, 1527, 281 Cal.Rptr. 12.)   If he does not elect to do so the trial court is ordered to reinstate the 12022.1 enhancement and impose the proscribed punishment therefor.

The judgment is reversed and the matter is remanded to permit respondent the opportunity to withdraw his plea and admission.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   The trial court also stated:  “Now, with regard to 12022.1, you may be correct, Mr. Rafelson [Deputy District Attorney], that this court does not have the authority to strike those under any code section.   Candidly, I just assume that you take this up and find out.   I haven't seen anything yet that indicates that I don't have the authority.   I think I have the authority under either of two ways to do it.   One is pursuant to [Penal Code section] 1385 and—I don't know what the other is, that recent case indicating the court could use any legitimate factor in mitigation ․ what the Appellate Court felt was the legitimate factor in mitigation․  [¶] ․ I would stay it, particularly if you're going to take it up.   If they say I have to impose, I'll impose and then strike it.   I just as soon stay it.   It is my intention it not be imposed unless I'm directed by the Appellate Court to impose it.   If they feel when you take it up there I used the wrong word, let me know.   My intention is pretty clear.”Thereafter, defense counsel pressed for a “striking” of the enhancement rather than a “staying” of the punishment.   The trial court then said, “I'll strike.”   The court's minutes state:  “The allegation pursuant to 12022.1 P.C. is stricken by the court.”

3.   Of course, appeals such as the instant one would be nonexistent if the Legislature, as it has done with section 667 “serious felony” enhancements, would simply and expressly list those enhancements which are not subject to be stricken pursuant to section 1385 in section 1385, subdivision (b).

YEGAN, Associate Justice.

STEVEN J. STONE, P.J., and GILBERT, J., concur.