Opinion
Tommy Lee Jones appeals from the judgment entered following his conviction by a jury on one count of second degree robbery (Pen. Code, § 211)
On appeal Jones contends the trial court committed prejudicial error by failing to exclude the victim’s identification of him in a photographic lineup and improperly concluded it lacked discretion to consider striking the punishment for the deadly weapon enhancement. We affirm the trial court’s evidentiary ruling. However, because the court incorrectly concluded imposition of the deadly weapon enhancement specified by section 12022, subdivision (b)(1), is mandatory, we reverse and remand the matter for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Robert Brown, a homeless man living near an off-ramp of the Hollywood Freeway in Los Angeles, first noticed Jones when Jones and two other homeless men pitched a tent in a lot next to the off-ramp on the other side of the freeway. Brown, who had been living at his site for about six months, warned the three men that use of tents was illegal in Hollywood and would cause the police to roust them. Jones told Brown he would not move. A day or two later the police came and forced all of the men camped on the lot to move, after which Jones and his companions erected the tent on the lot occupied by Brown. Brown again confronted the men, including Jones, and warned them the tent would result in the police rousting not only them and their tent but also everyone else
Upset, but also hungry, Brown walked over to the adjacent off-ramp to panhandle. One of Jones’s companions, whom Brown knew as Eric, approached the same off-ramp with a cup and a sign, which he set on the retaining wall. Brown told Eric once more they should move the tent because they had already lost their original site and were now jeopardizing Brown’s location. The conversation became heated. Agitated, Brown knocked Eric’s cup and sign off the retaining wall. Eric left the ramp and returned to the tent, and Jones walked over to Brown, who had resumed panhandling. Brown and Jones argued again about the tent; and Jones told Brown, “I’m not leaving. You’re the one that’s leaving.” Jones walked back to the tent and returned, this time holding something against his leg. Brown, who was panhandling, claimed he did not see Jones approach but turned when he felt a “prick” in his back to see Jones standing there with a knife in his hand. He then touched his back, saw his hand full of blood and realized Jones had stabbed him. Jones told him to pick up the cup Brown had knocked over. When Brown protested it was Eric’s cup, Jones threatened to stab Brown in the neck. Frightened, Brown gave him the change he had collected. Jones then walked back toward the tent. Brown walked to a nearby gas station and called an ambulance, which transported him to a hospital where he was treated for a puncture wound approximately one inch in width.
Brown’s version of events was largely corroborated by Roger Gomez, who sat in his car waiting for the light to change at the top of the off-ramp as the incident unfolded. Although Gomez was later unable to identify Jones in a photographic lineup, he described seeing a Black man (Jones is African-American) holding something by his side approach Brown, who is also African-American. Momentarily distracted, Gomez did not see Jones stab Brown but saw the two men arguing and Brown lifting his shirt to reveal blood. He then saw Jones walk away from Brown and throw something over the fence into an empty lot. When the light changed, Gomez continued through the intersection and left the area. A short while later, however, he returned to reenter the freeway and saw police officers searching the field. Gomez stopped and told them what he had seen, after which the officers found a knife with a blade approximately one inch across.
Los Angeles Police Officer Jaime Gonzalez, who responded to the scene and spoke with Brown, surmised the incident involved a “transient on transient” crime. Based on Brown’s description of his attacker, Gonzalez speculated Brown had been stabbed by Jones, whom Gonzalez had ticketed the day before for panhandling in the street.
Before trial Jones’s counsel moved to suppress Brown’s identification of Jones in the photographic lineup. The court denied
At the sentencing hearing the court indicated its intention to impose the middle term sentence of three years on the robbery count, plus a three-year enhancement for the great bodily injury allegation and a one-year enhancement for use of a deadly weapon. The court also indicated it would stay the sentence on the aggravated assault conviction under section 654. Jones’s counsel then called as a witness a Salvation Army counselor who had been supervising Jones in a drug and alcohol abuse program for veterans since his incarceration. The counselor described Jones’s commitment to changing his life, a message Jones echoed in his own statement to the court asking that he be given probation in order to proceed with the program. The court praised Jones’s progress, but declined to order probation in light of Jones’s five previous felony convictions. The court also denied Jones’s request to stay or strike the deadly weapon enhancement, stating it lacked discretion to do so.
CONTENTIONS
Jones contends the trial court erred in denying his motion to exclude Brown’s identification of him in the photographic lineup on the ground the lineup was unduly suggestive and in concluding it lacked discretion to strike the punishment for the deadly weapon enhancement authorized by section 12022, subdivision (b)(1).
DISCUSSION
1. The Trial Court Did Not Err in Denying the Motion to Exclude Brown’s Identification of Jones in the Photographic Lineup
2. The Trial Court Erred in Concluding It Lacked Discretion to Strike the Deadly Weapon Enhancement Under Section 12022,
Subdivision (b)(1)
a. Section 1385 and the court’s discretion to strike the punishment for enhancements
“It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c),* [
The Legislature may eliminate this power; but, if it elects to do so, the abrogation of section 1385 must be effected in clear and unmistakable terms. (People v. Williams, supra,
Further, absent any other indicia of legislative intent to eliminate the sentencing court’s discretion under section 1385, courts construing the general legislative direction “notwithstanding any other law” have held that language insufficient to make imposition of a sentencing enhancement mandatory. (Romero, supra, 13 Cal.4th at pp. 523-524.) “The legislative command that a statutory provision be applied ‘notwithstanding any other law’ most likely means that the provision, when applicable, ‘takes the place of whatever law would otherwise determine defendant’s sentence for the current offense.’ [Citation.] When the Legislature intends to divest trial courts of authority to strike an enhancement, it does not rely on nonspecific language, such as ‘notwithstanding any other provision of law’ [citation], but rather expressly divests trial courts of authority to strike [the relevant enhancement].” (People v. Wilson, supra,
b.
Section 12022, subdivision (b)(1), provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” Section 12022, subdivisions (a) and (c), impose varying enhancements for felonies in which a defendant is found to have been armed with a firearm (subd. (a)(1)), an assault weapon, machine gun or a .50 BMG rifle (subd. (a)(2)) or a firearm in the commission of certain drug offenses (subd. (c)); and section 12022, subdivision (d), provides for a sentence enhancement if the defendant was an accomplice of someone armed with a firearm who committed one of the drug offenses listed in subdivision (c). Section 12022, subdivision (e), clarifies that enhancements imposed under section 12022 “shall count as one, single enhancement.” Finally, section 12022, subdivision (f), provides, “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served,” in effect paralleling the language of section 1385, subdivision (a).
The People argue section 12022, subdivision (f), by specifically affirming the trial court’s authority to strike enhancements imposed under section 12022, subdivisions (c) and (d), while omitting any reference to section 12022, subdivision (b), confirms the Legislature’s intention to restrict the operation of section 1385 to subdivisions (c) and (d) only. Although the People correctly observe “it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation” (.People v. Thomas, supra, 4 Cal.4th at p. 211), neither the permissive language of subdivision (f) nor the negative pregnant construction advanced by the People constitutes the clear indication of legislative intent required to deprive the trial court of the authority to strike a sentencing enhancement.
First, in light of the well-established case law referenced above that even mandatory language requiring imposition of a sentencing enhancement is insufficient, standing alone, to strip a court of its discretion to strike an enhancement, it is difficult to understand how, as a matter of both logic and statutory construction, language that simply confirms the court’s authority to strike enhancements in particular situations could be an adequate basis on which to conclude the court has been deprived of its power to do so in other circumstances.
Second, the history of section 12022 and the circumstances under which subdivision (f) was added to the statute reinforce the
additional punishment”:
To be sure, section 1170.1 no longer contains express confirmation of the trial court’s authority under section 1385 to strike section 12022 enhancements. But, as the Supreme Court explained in Meloney, supra,
Finally, our conclusion a court retains discretion to strike section 12022, subdivision (b), enhancements is fully supported by the Legislature’s express reference to section 1385 in several other provisions of the Dangerous Weapons Control Law (§ 12000 et seq.), which unequivocally eliminated equivalent discretion. For instance, subdivision (c) of section 12022.5, which imposes sentence enhancements for personal use of firearms, expressly states “[Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section . . . .” (Italics added.) The same is true of subdivision (h), of section 12022.53 (imposing enhancements for use of a firearm in the commission of certain enumerated felonies), which states “[Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section . . . .” Indeed, section 1385 itself expressly restricts a court’s authority “to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” (§ 1385, subd. (b); see also § 1385.1 [“[Notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance . . . admitted by a plea of guilty or nolo contendere or is found by a jury or court as provided in Sections 190.1 to 190.5, inclusive”].)
In sum, nothing in the language or history of section 12022, subdivision (f), reflects the “clear and unmistakable” intent required to restrict the authority of the trial court to consider, in its discretion, striking the one-year deadly weapon-use enhancement imposed under section 12022, subdivision (b)(1). Because Jones was entitled to a sentencing decision made in the exercise of the “informed discretion” of the court (see People v. Belmontes (1983)
DISPOSITION
The cause is remanded for resentencing to allow the superior court to consider whether the enhancement imposed under section 12022, subdivision (b)(1), should be stricken under section 1385. In all other respects, the judgment is affirmed.
Woods, J., and Zelon, J., concurred.
Notes
Statutory references are to the Penal Code unless otherwise indicated.
Gonzalez also identified Jones at trial as the man he had ticketed the day before the assault for panhandling in the roadway.
See footnote, ante, page 1373.
Section 1385 provides, “(a) 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. H] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667. [][] (c) (1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a). [J[] (2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a).”
The proper interpretation of a statute and the application of the statute to undisputed facts are questions of law, which we review de novo. (People v. Weaver (2001)
To decide whether the discretion conferred by section 1385 embraces the deadly weapon-use enhancement set forth in section 12022, subdivision (b)(1), we are guided by the familiar principle that “ ‘[t]he fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ ” (People v. Thomas, supra, 4 Cal.4th at p. 210, quoting People v. Pieters (1991)
The Supreme Court in People v. Thomas, supra,