Dеfendant, Dorothy Fay Baríes, and the People both appeal contending that the sentence imposed pursuant to a guilty plea is unauthorized by law. This appeal raises only sentencing issues; therefore the facts are not relevant.
Baríes pleaded guilty to the following offenses: two counts of second degree burglary (Pen. Code, §§ 459, 460, subd. 2) and one count of escape from a county jail (Pen. Code, § 4532, subd. (b)).
The court imposed this sentence: the midterm of two years on one of the burglary offenses (being the principal term within § 1170.1, subd. (a)); an eight-month consecutive subordinate term on the second burglary offense; a consecutive two-year term for the section 12022.1 enhancement; and an eight-month consecutive term for the escape. This five-year, four-month Santa Clara County sentence was imposed to run concurrently with the Merced County sentence. Concurrency was an express condition of the plea.
The People contend the sentence is illegal because section 12022.1 requires consecutive sentencing on the Merced and Santa Clara County offenses. Baríes admits this contention but argues thаt on this record the trial judge’s imposition of concurrent sentences amounts to an exercise of his power under section 1385 to strike the enhancement. Additionally, Baríes makes these further arguments: (1) the court was not authorized to impose the two-year term for the section 12022.1 enhancement; (2) the trial judge misconceived his discretion to sentence the escape offense as either a felony or a misdemeanor, and consequently he imposed а consecutive prison sentence for the escape without being aware that he had other options; (3) the sentence violates the twice the base term limitation of section 1170.1, subdivision (g).
In imposing the sentence, the trial judge, responding to the district attorney’s objection that the concurrent sentences were unauthorized by law, made these relevant comments: “The Court: There’s actually no problem getting to any type of number you want to do. But court is stuck with thе, I guess, kind of naive position. Court likes to see justice done, proper sentence
“Imposing a sentence just because mathematically it has to be spitted out, I’m glad we’re not at the point where computers are just put into a machine and let the machine do the sentencing and these are the numbers you come up with.
“Court is well aware that I deal with human lives, I deal with human emotions, I deal with real victims, I deal with real crimes. And at the time I do sentencing I want to be able to look at a defendant square in the eye and say I’m doing this because I feel this is exactly what should be done.
“I’m not very familiar with what happened in Merced, I’m not familiar with the procedures that occurred in Merced, I’m not familiar with the basis of their sentencing or what factors they took into consideration or why they imposed the sentence that they did.
“I prefer imposing a sentence in Santa Clara County based upon the acts that were committed in Santa Clara County, the charges that she pled to, based upon facts of the case that’s here.
“I have absolutely no problem about taking into consideration the fact she does have prior convictions in Merced County. I’m very, very reluctant to stack my sentence consecutivе to the sentence imposed in Merced without knowing the thinking and underlying considerations the court took in that particular jurisdiction.
“If the law is such that I have to impose a consecutive sentence to that sentence imposed in Merced County, I will do so, and I will do so only if I am ordered to do so by the Court of Appeal.”
Discussion
The imposition of concurrent sentences on the Merced and the Santa Clara County oifenses was clearly unauthorized by law. Section 12022.1, quotеd in full in the margin
Instead, she contends that the language of the trial judge quoted above indicates his intent to exercise his discretionary powers under section 1385 to dismiss the enhancement in furtherance of justice. She stresses especially such language as his comment that a consecutive sentence would not be “in the real, real interest of justice,” as well as his comments refusing to be bound by mechanistiс rules and wishing to “look at a defendant square in the eye and say I’m doing this because I feel this is exactly what should be done.”
Baries’s argument cannot succeed. First, the trial judge cannot be said to have committed the functional equivalent of striking the enhancement when he in fact imposed a consecutive two-year sentence for the enhancement on the Santa Clara term. There is no logical procedure by which he could have dismissed or stricken the еnhancement and still arrived at the sentence he in fact chose. What he wished to avoid was consecutive sentencing, which the statute mandates. This sentence is unauthorized by law.
Also, there is no authority for the proposition that the portentous power to dismiss charges in furtherance of justice may be exercised by implication. We are not inclined to create such a precedent. To dismiss a charge of which a defendant has been convictеd, whether by a jury or by his or her plea, is a serious matter which should be the result of deliberate, focused reflection. As the People correctly point out, not only may the power not be exercised implicitly, but the judge must in fact place reasons on the record for a dismissal under section 1385. (E.g., People v. Orin (1975)
We turn to other contentions which should be discussed for the guidance of the trial court in resentencing Baríes. First we consider the propriety of imposing the two-year enhancement for the section 12022.1 admission.
Baries’s first argument is that in the situation which we have here—where the defendant is convicted of both the primary and the secondary offense and is sentenced for each offense—the enhancement cannot be imposed.
Baríes argues that differences in the wording of subdivisions (e) and (f) of the statute require the above result. Subdivision (e)—the two prison sentence situation—contains no language imposing the enhancement, whereas by contrast, subdivision (f), which deals with the situation where defendant receives probation on the primary offense, does contain language specifically imposing the enhancement. To illustrate: in subdivision (e)—the situation where defendant is convicted and sentenced to state prison for the primary offense—“any state prison sentence for the secondary offense shall be consecutive to the primary sentence.” The subdivision contains no reference to any enhancement. In contrast, subdivision (f)—the situation where the defendant is convicted and granted probation for the primary offense—says “any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b).” Thus, this subdivision specifically authorizes enhancement. Defendant concludes from these differences in the language of the two subdivisions that the statute presents an alternative statutory sentencing scheme: if probation is granted on the primary offense, then defendant receives the prison sentence on the secondary offense, plus the enhancement (subd. (f)); whereas if he receives prison sentences on both offenses, the sentences are imposed consecutively, but with no enhancement.
In addition to basing his argument on the difference in the wording of the two subdivisions, defense counsel also points out that a 1985 amendment to section 12022.1 indicates a legislative intent not to impose the enhancement in the subdivision (e) situation. The former version of section 12022.1 specifically imposed the enhancement in the subdivision which corresponded to present subdivision (e) (dealing with the two sentencе situation), but the 1985 legislative amendment specifically deleted from that subdivision the
If we were to look only at subdivisions (e) and (f) and the above stated history of those рrovisions, we would be bound to conclude that section 12022.1 imposes no enhancement in a two-sentence situation. However, “[w]hen a penal provision is part of a general legislative scheme, it must be construed with reference to the entire scheme, so that harmony may be achieved among the parts.” (People v. Jackson (1987)
Here, it is similarly unlikely that the Legislature intended to impose no enhancement in the situation of subdivision (e). For one thing, such a construction leads to absurd results. Our calculations show that in a great many situations the defendant would end up serving a longer sentence when granted probation on the primary offense than when sentences were
Further, we have examined the legislative history of the 1985 amendment to section 12022.1. Nothing in that history indicates any legislative intent to eliminate the enhancement in the two-sentence situation; that possibility is nowhere discussed in any of the materials available from the state archives. The purpose of the 1985 amendment was to overrule certain appellate court decisions which had “eviscerated” section 12022.1, in the minds of certain legislators, by holding (1) that there could be no enhancement if the defendant had already been convicted of the primary offense before committing the secondary offense (McMillon v. Superior Court (1984)
Results which are sensible and consonant with the actual legislative history of section 12022.1 can be achieved if we treat the enhancement as being required under both subdivisions (e) and (f). To achieve that result we must read subdivision (b) of section 12022.1 as the general provision which imposes the enhancement. Subdivision (b) sets out the enhancement mechanism, providing that a secondary offender “shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term impоsed by the court.” If this is the part of the statute mandating imposition of the enhancement, then the statute imposes it in both the situations of subdivisions (e) and (f) and no anomalous results will occur except that in subdivision (f) the language again imposing the enhancement is surplus.
Although no decision directly considers the issue before us here, several have imposed the full two-year enhancement in two-sentence situations, by authority of this subdivision. (E.g., People v. Jackson, supra,
The rule of construction of criminal statutes is that when penal laws are ambiguous the court must adopt the construction most favorable to the defendant. (People v. Overstreet (1986)
However, we follow the lead of the Jackson court in declining a construction of the statute which leads to absurd and meaningless results which
We conclude that the proper construction of section 12022.1 requires consecutive sentencing, and a full two-year enhancement, under subdivision (e). Accordingly the trial court correctly imposed the enhancement, but it should have sentenced consecutively on the secondary and primary offenses.
We turn to the contention that the court did not exercise informed discretion when it imposed the sentence for the escape. There is no basis in the record for this contention. The court’s reference to the legal requirement of consecutive sentencing for a felony escape may have been nothing more than a statement of applicable law. Further, at that point Baríes had already pleaded to that charge with the expectation of a prison sentence; hence, short of exercising a section 1385 power, the court actually had no choice. There is no basis for this argument.
With regard to the contention that the sentence, including the section 12022.1 enhancement, may not exceed the twice-the-base-term limitation of section 1170.1, subdivision (g), we conclude that it is inappropriate to resolve the issue presently. This issue may become moot in light of the necessity for remand and the possibility that a shorter sentence will be imposed. We observe there is present uncertainty as to the meaning of the twice-the-base-term limitation; three recent decisions construing subdivisiоn (g) of section 1170.1 have been affected by California Supreme Court order. (People v. Prather and People v. Brite, review granted; People v. Mason, ordered depublished.) We note that subdivision (g) of section 1170.1 lists
Disposition
The judgment is reversed and the matter is remanded for further proceedings in accordance with this opinion.
Agliano, P. J., and Elia, J., concurred.
Notes
All further statutory references are to the Penal Code.
Section 12022.1 provides in relevant part as follows: “(a) For the purposes of this seсtion only: [[[] (1) ‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked. [[]] (2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody fоr a primary offense. [j|] (b) Any
We calculate the following results if the enhancement were imposed only when defendant receives probation on the primary offense (assuming for simplicity only midterms are imposed and there are no extraneous consecutive sentences or enhancements other than the 12022.1 enhancement): First, whenever the sentence for the primary offense were less than six years, the defendant would receive a shorter sentence if he were sentenced for both offenses, than if he received probation on the primary offense, provided that the sentences on the primary and secondary offenses were equal, or the primary offense sentence were shorter than the secondary offense sentence. For example: if the sentence on the primary offense were two years, and the sentence on the secondary offense were fоur years, the results would be (a) if probation were granted on the primary offense, a sentence of four years plus two years enhancement equals six years; and (b) if no probation were granted, the sentence would be a base term of four years plus a subordinate term of one-third (two years) equals four and two-thirds years, which is less than six years, so that the punishment would be more severe when probation was granted. As another example: if the sentences on both thе primary and secondary offenses were two years, the results would be (a) if probation were granted on the primary offense, the sentence would be two years plus the two-year enhancement equals four years; and (b) if no probation were granted, then the sentence would be a base term of two years plus a subordinate term of one-third (two years) equals two and two-thirds years, again a shorter sentence than if probation were granted.
Clearly, none of these results is likely to have been legislatively intended.