*1 No. 20075. June [Crim. 1979.] PEOPLE,
THE Plaintiff and v. Appellant,
HAROLD TANNER, EMORY Defendant and Respondent.
Counsel General,
Evelle J. Jack R. Younger George Deukmejian, Attorneys Winkler, General, O’Brien, Chief Assistant P. Edward Assistant Attorney General, DeHart, Jr., Gloria Clifford K. Patrick G. Attorney Thompson, Sullivan, Golden General, and Laurence K. for Attorneys Deputy Plaintiff and Appellant.
John K. Van de District B. (Los Kamp, Attorney Angeles), Harry Sondheim and Maurice H. District Oppenheim, Deputy Attorneys, Hanelt, Amici Condit & W. M. Thomas Condit and Frederic Hanelt as Curiae on behalf of Plaintiff and Appellant. Nolan, Jr., Court,
Thomas J. for under appointment Supreme by Defendant and Respondent. Littlefield, Shabo,
Wilbur F. E. Public Defender Harold (Los Angeles), Fischer, Defenders, Quin Dennis A. Paul N. Halvonik and Public Deputy Denvir, Defenders, Jeffers, State Public R. State Clifton Chief Assistant Defender, Hirsch, Millman, Public G. Michael Harriet Wiss Deputy Defenders, Monroe, Riddet, State Public C. S. Monroe & Keith Roger Hanson and C. Martinez as Amici Curiae on behalf of Defendant George and Respondent.
Opinion CLARK, from order People appeal defend- striking jury finding J. —
ant used a firearm the commission of The order during robbery. of Penal Code section 1203.06.1 We disregards mandatory language conclude the trial court erred.
This Did involves issue: appeal single section 1203.06 intend its be Legislature enacting language mandatory that a . “court . . subject preexisting language statutory providing may own its motion . . . and in furtherance of order an action to be justice, dismissed”?2 (§ 1385.) Section has been construed provide to dismiss or strike —within the court’s judicial power allega discretion — which, tions if would enhance criminal proven, punishment alleged (See conduct. v. Burke 47 Cal.2d 50-51 P.2d People 241].) [301 This case arises because the 1203.06 section did enacting state whether the of section 1203.06 expressly mandatory provision be would discretion to section 1385. subject judicial pursuant The facts of this case lend themselves to action discretionary *5 trial court —if the court the of such discretion. Defend- possessed ant, record, no criminal entered and having robbed a retail store prior $40, of clerk an unloaded the he instructed clerk using handgun. Leaving, to sound an alarm to later, Half hour an defendant was notify police. arrested in the of store. At the trial he he had vicinity explained committed the crime in an to the store owner to renew persuade attempt discontinued services recently defendant’s security provided by employer. However, substantial evidence that defendant supports jury findings criminal to intent commit the to possessed crime and use the requisite firearm. 1 Section 1203.06 in of provides pertinent part: section “Notwithstanding provisions (a) 1203: (1) Probation shall not be to . . .: granted [a]ny person who used firearm the commission ... of
during (iii) of the crimes: in violation of any following Robbery, (Italics added.) Section 211. . . .” After was stricken use-finding was sentencing suspended and defendant was condition, others, admitted probation for period five on that he years serve among one in the year 9 1976. county jail, beginning July Unless otherwise all references herein are to of the specified, statutory sections Penal Code. 2 The People’s notice appeal purports as challenge striking use-finding only to section 1203.06 but as to also section 12022.5. That section would increase the term of However, for a firearm in imprisonment the commission using crimes. particular briefed,the 12022.5, have not People issue as to section their confined to argument being section 1203.06 issues. We deem the to have abandoned section 12022.5 issues. People
519 Because is a creation Cal. (see probation statutory Const., IV, 1; 619, art. Keeler v. 2 Court Cal.3d 631 (1970) § Superior [87 481, 617, 470 P.2d 40 v. A.L.R.3d Sidener 58 420]; (1962) Cal.Rptr. People 645, 697, Cal.2d 653 375 In P.2d re Haines 195 641]; (1925) Cal.Rptr. [25 605, 642, 622 P. v. 883]; (1951) Cal. Hess People [234 Cal.App.2d 685-686 P.2d us issue is one 45]), confronting statutory [234 While the has not assisted us in purpose.3 Legislature discerning intent, we must its conclude that when proper findings invoking made, of section 1203.06 have been operation mandatory provisions of that section not be avoided section 1385 strike may by employing either the or the of the allegations complaint findings jury. discloses a interest in
History continuing legislative limiting firearms in serious privilege probation persons using committing crimes. Between 1923 and 1957 was unavailable to defendants probation 1923, 1, 144, crimes. ch. using deadly (Stats. weapons § specified 1927, 291; 770, 1, 1493; 1931, 786, 1, Stats. ch. Stats. ch. p. § § p. 1633.) Between 1957 and 1975 the made certain p. Legislature exceptions to the trial courts limited discretion. unavailability probation, allowing 1957, 2054, 1, ch. (Stats. 3649-3650; 1720, 1, Stats. ch. § § pp. 3867-3870; also, see v. pp. People Clay Cal.App.3d [96 However, 213].) in 1975 the further limited trial Cal.Rptr. court discretion to cases not within section 1203.06. Stats. (See falling ch. enactment, After the 1975 2.) §§ section 1203 operated criminal conduct deny probation following particular “[e]xcept unusual cases where the interests of would best be served.” justice 3 We with contention that courts are vested reject any inherently constitutionally ultimate sentences or factors for conduct authority fixing imposing penalty enhancing made criminal enactment. to the constitutional legislative “[Sjubject prohibition *6 cruel and unusual the and against to define crimes fix is punishment, power penalties Court, (Keeler vested in 2 the branch.” v. Cal.3d exclusively legislative supra, Superior 619, 631.) branch of the the to that in legislative has declare government power “[TJhe cases, certain . . . probation be The exercise of such in no may granted. way the It impinges upon branch of the does not jurisdiction judicial government. restrict nor the impair, of the courts. The function of the courts enlarge upon jurisdiction is to determine the or innocence of an guilt accused. What thereafter be disposition may Hess, made of is for the to determine.” by way v. 104 penalty (People supra, 642, 685-686; also, 864, (1959) Cal.App.2d see v. 51 Cal.2d Stephens 869-870 Toomey [338 175, 182]; (1950) P.2d (1964) v. People 1]; Knowles 35 Cal.2d 181 P.2d v. People Perry [217 258, 230 262-263 Cal.App.2d 829]; v. Orrante 201 Cal.Rptr. People Cal.App.2d [40 553, 559-566 480].) Cal.Rptr. [20 In the instant case the trial court —in the contention that section People’s rejecting 1203.06 the that if section 1203.06 were to so precluded striking use-finding be —stated construed it would an constitute unconstitutional invasion of the judicial sentencing function. The court erred in so to its further error in the concluding, leading striking use-finding.
520
1203, subd.
The section 1203.06
(§
(d).)
against granting
prohibition
however,
1203,
that of
even
section
probation,
goes
beyond
denying
crimes,
to criminals convicted of enumerated
for no
probation
providing
in the interest of
or otherwise.
exception
justice
We
intends discretion
must therefore conclude the Legislature
in
within section 1203 but not
be exercised
the case of crimes
may
falling
law
within section 1203.06.
other construction restores
pre-1975
Any
deems that
a court to
to
criminal if the court
allowing
grant probation
any
to do so would
in
of
Such
resurrection
be
the interest
justice.
judicial
Court
the 1975
v.
renders
a
(See
Superior
legislation
People
nullity.
294,
521 nature, whereas section is to the broad general relating Finally, dismissal, 1203.06 section to the limited scope specific, relating of dismissal for matter at issue. purposes probation very —the enactment, Section 1203.06 is the later adopted by to the at A hand. response particular problem specific provision to a will a even relating particular subject govern general provision, alone would broad be though general provision standing enough include the to which the relates. State v. subject (Rose specific provision (1942) Cal.2d 723-724 P.2d 505].) [123 of California Because we conclude section 1385 is when inapplicable proper been 1203.06, have made section it trial follows that the findings invoking court erred in use and defendant striking finding sending county rather than Stats. ch. (Cf. 22.) jail § prison.
However, unusual manner in which given postconviction issue of resolved, has discretion been and it judicial presented finally follows Mr. Tanner should be committed to The necessarily prison. from rule of law in the trial court’s uncertainty arising resulting erroneous created has both an unusual burden on defendant disposition, and a dilemma for this court. is it not unfair to Mr. Simply put, require Tanner to now serve a second term for his criminal act?
While Penal Code warned Mr. Tanner of the pertinent provisions fairly mandated for a in the commission penalty we are using gun robbery, with concerned ambivalence final of his judicial preceding disposition case. In a similar case the United States Court of held that highly Appeals defendants, while crimes, unauthorized for their receiving probation should nevertheless not be resentenced life required imprisonment death because would “work substantial on the resentencing hardship Defendants.” v. (United States Denson Cir. (5th 1979) F.2d stated, The court 1132.) other “These Defendants have among things: been told after such would be prosecutions investigations they to one incarceration to be followed five subjected year’s years to surrender for such incarceration. supervision. They prepared They have their lives to the assessed. have adjusted punishment They sought and secured consistent with the term employment opportunities incarceration withdraw the for which the To. imposed. probation granted have would Defendants their families themselves work prepared substantial and their families.” at on Defendants (Id., hardship deemed to exist even 1132.) The substantial was p. though hardship *8 in defendants Denson had served the incarceration yet one-year a for concurrent crime. imposed
Mr. Tanner with his conditions of having complied probation —includ- one in determine a incarceration second ing year’s stay county jail —we would be unjust.
The is affirmed. judgment
Mosk, J., Richardson, J., J., Manuel, and concurred. J., TOBRINER, J., BIRD, NEWMAN, J., C. and Concurring concur in the result reached in the Dissenting. majority opinion, —We which Harold Tanner on be permits appellant probation placed that he had “used a firearm despite jury’s finding during commission ... of... within the of Penal Code meaning [rjobbery” [a] section 1203.06. We do not concur in the of the language majority opinion insofar as it that the trial no court had to strike the “use” suggests power in order to on For reasons that each finding place appellant probation. us more we remain convinced that expresses fully separate opinions, the trial court does have that power.
TOBRINER, J., in the concur Concurring Dissenting. judgment —I court, of the which —it the trial should be court emphasized —affirms however, I defendant on do not with judgment placing probation. agree, discussion the lead dicta —which opinion technically suggests — Penal section Code 1203.06 can be as a interpreted abrogating properly trial court’s strike use of a firearm under Penal Code finding section I 1385. As shall the lead explain, opinion’s statutoiy interpretation conflicts with all California which have decisions directly prior construed similar 1385. statutes relation to section sentencing
Moreover, the result reached the lead is inconsistent by opinion plainly with the the lead opinion’s purported interpretation. statutory Although that the section 1203.06 so clear and opinion suggests language absolute as to trial courts from the discretion preclude exercising contrast, afforded them section its reveals explicitly holding, by that the has not been construed to this court statutory language preclude from inherent, discretion so as exercising nonstatutory, presumably relieve a defendant who has used a of a sentence. gun prison mandatory *9 If section 1203.06’s does not this court from exercising language prevent discretion in order to avoid or “unfairness” in the case of Mr. “injustice” Tanner, then that same not be clearly statutoiy language may reasonably construed as trial authorized discretion court’s abrogating statutorily under section 1385. The lead a classic of thus opinion represents example a court’s action louder than its words. speaking
The numerous flaws in the lead
are
from the outset.
opinion
apparent
After
that
case arises because the
explicitly acknowledging
“[t]his
section 1203.06
not
did
state whether the
Legislature
enacting
expressly
section 1203.06 would be
mandatory provision
subject
judicial
discretion
to section 1385” (italics added)
pursuant
{ante,
518),
p.
omission
either to
opinion replicates
legislative
by completely failing
or,
indeed, even to mention —the
apply,
distinguish,
overrule —
numerous California decisions that have
dealt with this
specifically
issue in
below,
I
cases. As
discuss
for the
precise
prior
past
with
v. Burke
Moreover, authorities, its to the the lead by closing eyes prior opinion a fundamental canon of which teaches ignores legislative interpretation that in a statute courts should that construing properly presume was aware of decisions similar Legislature existing judicial interpreting and drafted statute in such decisions. When the provisions light enacted section 1203.06 decisions controlling it made clear that a statute would be construed to sentencing abrogate declared; a court’s section 1385 unless the statute so specifically since the draftsmen section 1203.06 did not include any language section traditional under specifically repealing abrogating the statute should not be as principles interpreted eliminating power. Indeed, below, as discussed more omission this legislative fully are case is into focus when the terms section 1203.06 brought sharp with 1203.08, Penal Code section a similar compared provisions statute, “no coauthored one of the draftsmen probation” of section *10 1203.06, and enacted one after section 1203.06. In section just year 1203.08, 1203.06, unlike section the included a Legislature specifically which, in cases the within ambit of section separate provision falling 1203.08, limits a trial court’s under strike section 1385. expressly power action, That close the of on heels the enactment of legislative coming 1203.06, section a indicates awareness legislative governing California authorities and demonstrates that is Legislature quite itself it when intends to a eliminate trial capable expressing clearly court’s to strike. In the face of the power of section provisions differing 1203.08, this court cannot conclude that section 1203.06 evi- properly dences a clear a trial court’s 1385 section abrogation power.
Furthermore, to the lead contrary opinion’s suggestion, by interpreting section in 1203.06 accordance with authorities we would not be past the 1975 a Prior to section 1203—the rendering legislation “nullity.” statute —included a general probation courts provision specifically giving in case; an “unusual” use power trial courts grant probation gun accorded the “unusual case” of section 1203 a more apparently provision than and in expansive interpretation Legislature thought appropriate eliminated the “unusual case” of section provision 1203 for such cases. That action evinced an legislative unquestionably cases, intent reduce the in a granting probation gun-use legislative decision that has not that been lost on trial courts and has policy certainly and will been continue to a be reflected in decrease in the sharp granting in such cases. The of the trial courts’ probation legislative disapproval however, is no means irreconcilable with pre-1975 probation practice, by intact; a decision leave the trial courts’ section legislative power well have desired to the trial courts’ Legislature may disapprove quite liberal without such pre-1975 probation practice completely stripping courts of their traditional to strike or in the allegations findings case. truly extraordinary exceptional
Indeed, the lead ultimate determination to Tanner of relieve opinion’s traditional, sentence is to the prison eloquent testimony strength area, in this underlying judicial policies recognizing exceptional circumstances —unforeseen in rare cases warrant Legislature may— noted, from a sentence. As this departure generally appropriate already not, fact, demonstrates that the lead has holding opinion interpreted discretion; section 1203.06 as all of this judicial removing disposition case with to the an defendant is exercise of respect present clearly just I, course, such discretion. While with the affirmance of the agree I fear that the of the lead judgment, inconsistency opinion’s reasoning courts; thus, and result can additional to the lower confusion only bring to illuminate whether its fails example, opinion holding applies defendant, to all on or to all to the cases present pending appeal, only The future in which a defendant is cases probation. erroneously granted statutes probation (compare Legislature’s schizophrenia drafting 1203.06, 1203.08, now reflected in the lead 1203.09) 1203.07 with §§ §§ for Tanner parallel inconsistency upholding probation opinion’s courts under facts like into confusion the issue whether casting complete Tanner can at all. *11 grant probation reviewed the in the lead I deficiencies
Having major opinion, explain the basis of conclusion that the trial court should be my judgment affirmed.
Because section
not
1203.06 does
terms restrict a trial
explicit
1385,
court’s
to strike under section
cannot be
power
provision
a trial
court’s exercise
such
interpreted
preclude
power
light
of
of
v. Burke
Although language explicitly action, court has that the section also entire criminal our long recognized or “to a authorizes a trial court to dismiss strike” only portion court, or to dismiss one accusatory pleading, permitting example, more counts of a multicount or to strike allegations prior complaint convictions increase a defendant’s or restrict the which may punishment 163, v. Ruiz 14 Cal.3d 166 nature of his sentence. (See, (1975) e.g., People 248, 872, 534 v. 7 Cal.3d P.2d Navarro 712]; (1972) People Cal.Rptr. [120 78, 6 497 P.2d In re Cortez Cal.3d 481]; Cal.Rptr. [102 83-85 Tenorio, 490 P.2d v. 819]; Cal.3d Cal.Rptr. [98 People supra, 89, 94; Burke, v. 47 Cal.2d 50-51.) People supra,
The relevant decisions establish that a trial court additionally may exercise its section 1385 at the time of as the trial court power sentencing, here, did and that a court utilize this a strike count or an may if even or court has found the defendant allegation such jury guilty count or has found the to be true. As our court allegation explained 50-51; Burke, v. 47 Cal.2d “The People supra, procedure ‘striking’ aside or aof conviction (or setting dismissing, charge prior any counts or of an indictment or multiple at the information) allegations courts, time sentence ... used in trial where the commonly only established, conviction has not been but prior also where the fact legally of the conviction has been but shown the trial court has concluded that ‘in the interest of defendant should not be justice’ required undergo increased which would from follow determina- statutorily penalty judicial tion of that fact. [Citations.]” case,
In the instant
the trial court did not utilize its section 1385 power
to strike an
of a
conviction
allegation
as in Burke
inor
prior
of our.
many
*12
cases,
other
but instead utilized its
to strike a use
a
authority
firearm
of
As the above
allegation
from
finding.
demonstrates,
Burke
quotation
however, in that case we
that the
to
explicitly
strike
recognized
authority
conferred
section 1385 extends
by
of
beyond
convictions
allegations
prior
to other
of an indictment or
“allegations
information” (
uses a firearm in the commission or commission of a assault attempted with robbery, murder, crime, or conviction of such deadly weapon, rape, upon burglary, kidnapping, shall, in to addition the punishment for the crime of which he has been prescribed convicted, the punished be in state for a of not less than imprisonment prison period five Such additional of shall commence or years. period imprisonment upon expiration other of termination the sentence for the crime which he is convicted and imposed shall not run with such sentence.” concurrently case, to the trial court’s in this 2 Subsequent ruling the amended section 1976, 1139, 305, to (See 12022.5 the effectively 5162.) rule. Stats. ch. codify § Dorsey p.
527 its court exercise however, if the trial that even may The People argue, an increased for to strike a use avoiding purposes finding power 1385 this 12022.5, not utilize section the court under section sentence may for defendant otherwise to render an eligible probation.3 ineligible power to strike 1385 utilized the section courts have In the power past, cases in some context: in a number of achieve sentencing purposes for to render a defendant has been utilized to strike eligible power to enable an rather than in state prison county jail imprisonment rehabilitation in a narcotics defendant otherwise ineligible participate Navarro, 7 Burke, v. v. (see, People supra, supra; program e.g., People invoked to afford section 1385 has been Cal.3d other cases 258); or maximum sentence of a shorter minimum the defendant benefit Tenorio, 1; fn. v. 3 Cal.3d (see, People v. Dorsey, e.g., People supra, Burke, 33 State Bar J. 556); see Priors (1958) supra; generally Striking cases, however, still other to the the People’s contrary implication to strike has been exercised section argument, explicitly for (See, render an otherwise defendant e.g., eligible probation. ineligible Ruiz, Cortez, 163, 166; 6 Cal.3d v. 14 Cal.3d In re supra, People supra, 85; In re Gomez 609].) (1973) Cal.App.3d Cal.Rptr. [107
Indeed, Cortez, declared that in In re our court supra, emphatically “one a motion to strike is make the paramount purposes priors The thrust of the motion is to eligible probation. persuade defendant for that, the existence sentencing judge despite prior, fit is a (Italics added.) (6 petitioning probation.” subject [defendant] Hence, at Cal.3d the fact that the trial court undertook its action in 85.) p. *13 1170.1, enacted in as of the so-called “Boatwright Section subdivision (g), part 1976, now Act of provides: Amendments” to the Uniform Determinate Sentencing law, the additional the-court strike other of may “Notwithstanding any provision . . . if it determines the in . . . 12022.5 for enhancements punishment provided [section] states on the of the that there are circumstances in additional mitigation punishment record its for the additional reasons striking punishment.” confirm the Act While the enacted of the Determinate Sentencing recently provisions result, of or denial does not to affect the granting the new legislation purport Dorsey probation. 15, 647) (Stats. in (a)(2) § ch. p. provides Section subdivision . . . which of law that in this article shall affect any provision this regard “[n]othing or imposition or the execution or restricts the of granting probation suspending authorizes . . .” of sentence. of of a use for finding 3 In this assert that striking purposes regard, People of section eliminate the use for finding purposes section 12022.5 does necessarily case, however, of a use have no occasion to decide whether striking 1203.06.In this we eliminates the (or finding one necessarily a to achieve sentencing objective finding prior) to limit the effect of trial court retains discretion or whether a for all sentencing purposes its discretion to it that it was exercising here the trial court made clear such for striking, and section 1203.06. of both section 12022.5 strike the use for finding purposes this case render the defendant for does not in eligible probation any indicate that the court did not exercise its under way appropriately power section 1385. assert,
The however, that even People if section 1385 additionally authorizes a trial court if, strike a use and even in finding general, section 1385 be utilized to render an may otherwise defendant ineligible for the trial court eligible could not probation, exercise such properly for such a in the instant case because of the purpose specific of 1203.06, section 1203.06. provisions Section enacted in provides that part section 1203 provisions “Notwithstanding general [the . . . probation to, shall not be nor shall the [probation section] granted execution or of sentence be . . imposition for . who suspended any person a used the commission or commission during attempted any firearm crimes. .. . in violation (iii) of Section 211.” following Robbery, (Italics added.) Section 1203.06 on to define “used firearm” to goes mean “to manner, a firearm in a it, fire display menacing intentionally or to 1203.06, strike or hit a human it” with subd. intentionally (§ being (b)(3)), also order to bar under the section provides probation the defendant’s use of the firearm must be in the information or alleged indictment and either be admitted the defendant or be found true by by or 1203.06, the court. (§ subd. jury (b)(1).)4 4 Section1203.06provides in full: of Section 1203: “Notwithstanding provisions to, “(a) Probation shall not granted be nor shall the execution or imposition for, sentence be suspended of the any following persons: “(1) person who used firearm Any commission or during attempted commission any crimes: following Murder. “(ij “(ii) Assault with intent to commit murder in violation of Section 217. “(iii) violation Section 211. Robbery, “(iv) “(v) in violation of Kidnapping, Section 207. ransom, extortion, or Kidnapping in violation of Section 209. robbery, “(vi) of the first as defined Burglary degree, in Section 460. violence, “(vii) force or Rape in violation of by subdivision of Section 261. “(viii) Rape threat of and immediate harm in violation of subdivision great bodily (3) of Section 261. “(ix) nature, Assault with intent to commit the infamous crime rape, *14 against in violation of Section robbery, 220. “(x) in violation of Escape, Section or Section 4532. “(2) person (i) convicted of a in Any previously felony specified subparagraphs (x) (I), of a who is convicted of and who was armed through paragraph subsequent felony with a firearm at time its commission or or was commission any during attempted armed with a firearm at of his for the unlawfully the time arrest subsequent felony. “(b)(1) The existence of fact which would a any make for person ineligible probation indictment, (a) under subdivision shall be in the information or and either alleged court, admitted the defendant in or found to be true the by open the issue by jury trying
529 of section the that since The language mandatoiy argue People to 1203.06, above, without denies any exception probation emphasized in the. commission to have used a firearm who has been found robber case retained in the instant offense, the trial court it must follow that his the so as to render the use 1385 to strike no under section finding for defendant eligible probation. present faced a similar our court of this very noted at the outset
As opinion, Burke, the In Burke, Cal.2d 45. v. in contention supra, People The then a felony. was convicted defendant marijuana, possession convicted been had that defendant had information previously alleged the admitted offense, defendant and at a similar arraignment marijuana Health time, 11712 of the section At that of the conviction. existence prior this under convicted that Code “[a]ny person Safety provided to include narcotic in for division possession any [defined having for in the . . be shall county jail imprisonment punished by marijuana]. not more than for not more than one or in the state years. prison year, offenses described convicted of If such has been any person previously [If] in the be the conviction shall in the . . . charged division previous a true the information and if found to be indictment or upon jury by jury, trial, court, or admitted trial, a court found to be true or if [if] by upon for not less defendant, state he shall be prison imprisoned by added.) (Italics two nor more than than years.” years mandated a state section which Notwithstanding ostensibly a convic- sentence since defendant had admitted prior marijuana prison tion, as to the trial court time of struck at the charge sentencing On the defendant conviction and sentenced county jail. appeal prior case, as do in light present People argued, they the trial court-had no nature of section 11712’s prescriptions, mandatory the admitted under section 1385 strike prior purposes authority a sentence. state avoiding prison contendere or or nolo of guilty is established by plea or the court where guilt by guilt without a the court sitting jury. trial by of criminal proceedings “(2) adjournment does not prohibit This subdivision with 3000) 6 (commencing or Division with Section 3 (commencing to Division pursuant Code. 6000) Institutions of the Welfare and Section firearm in a a firearm’ means (a) display ‘used a “(3) in subdivision As used it, manner, being or hit a human strike fire intentionally to intentionally menacing it. with means to (a) knowingly carry with a firearm’ “(4) ‘armed As used subdivision of offense or defense.” firearm as means
530 contention, Burke, that the
In our court observing People’s rejected relied not on which purport People statutory language “[does] be court to hold that the court could divest the trial (or constitutionally before it insofar as the of the to control the divested) proceedings power concerned; i.e., to find the defendant essentials of the are judicial process offense, or not offense or of a lesser included guilty guilty any charged, or to dismiss the action in toto or to or as to or all of strike dismiss any In counts convictions.” Cal.2d at (47 52.) multiple charges prior p. of an absence directive that the had explicit statutory Legislature intended to eliminate or restrict to strike the trial court’s general power 1385, under section the Burke court concluded that the statute should not so be construed. Burke trial court’s action in Accordingly, upheld conviction. striking prior decisions of court this have reaffirmed the Burke
Subsequent holding that, in the absence of an restriction of the trial court’s explicit legislative 1385, under section on that will not a restriction power generally power 69 Cal.2d be v. Court (See, (Howard) (1969) implied. e.g., People Superior 491, 330, 502 446 P.2d discretion of the (“the judge Cal.Rptr. [72 138] is absolute where the has section except [under 1385] 15, v. 28 curtailed In it”).) People supra, Cal.App.3d specifically Dorsey, the Court of reiterated this established Appeal finding principle 4, fn. of section 12022.5 (see ante) mandatory sentencing provisions a use did not court’s exercise of its section 1385 to strike power preclude finding.
As the court in California Dorsey explained, imposition “[t]he sentence and the exercise of discretion” at (28 sentencing Cal.App.3d have been viewed as 18) p. traditionally “fundamentally judicial Tenorio, 89, 94; nature” v. 3 Cal.3d v. (see, e.g., People supra, People 11 Court Tai Cal.3d 520 (On Ho) (1974) Superior Cal.Rptr. [113 P.2d and section 1385 has been as an essential tool 405]), long recognized to enable a trial court “to individualize treatment properly 18; Burke, offender.” at see Priors (28 Cal.App.3d p. generally Striking 33 State Bar J. of the section 556.)5 Emphasizing significance with to the court’s fulfillment of its traditional respect judicial judges individualize generally, See Williams Sullivan 5 Recently, 2963-2964], have v. Ashe although traditionally in Lockett v. Ohio sentences: v. New [(1937)] Chief Justice Burger York constitutionally required, taken “[T]he 302 U.S. [(1949)] a wide concept (1978) 438 U.S. [51] 337 U.S. variety took note of a trial court’s traditional .... of individualized [241], Consistent with that factors into account. has 247-248 . . . long [57 been sentencing L.Ed.2d accepted ; Pennsylvania concept, . . .” 973, 988, 98 S.Ct. in criminal in this authority sentencing country. ex cases rel.
531 context, in the the court the responsibility sentencing Dorsey put on notice that the would a not infer intent Legislature judiciary legislative to restrict a court’s to dismiss or to strike under section 1385 in the power absence of an restriction of the 1385 section explicit legislative power. The court “If stated in this the the intends that Dorsey regard: dismissal, of Penal Code section 12022.5 not to it be provisions subject ” could and should so (Italics indicate. added.) The 1203.06, concede that section enacted several after People years Burke, the decisions, Howard and contains no which Dorsey provision to eliminate or restrict a trial purports court’s to expressly strike power under section 1385. however, The that the absence People argue, despite of an strike, restriction on the to the explicit statutory power legislative of section 1203.06 demonstrates that the history Legislature generally intended to curtail area, trial courts’ that, discretion in this as a a on limitation a trial court’s to strike is consequence, necessarily in the action. In this the to implied a legislative regard, People point number of statements both and executive to legislative spokesmen demonstrate that a behind the enactment of section principal purpose 1203.06 was the elimination of the limited discretion trial had courts under section to 1203 in a in case previously enjoyed grant probation which a was used in the of a commission serious offense.6 gun
The which the legislative upon history People rely unquestionably indeed, indicates —as the does section 1203.06 introductory language one of itself—that the main the of section enactment 1203.06 purposes curtail, 1203.06, was to in the the instances enumerated in section specific discretion to trial which accorded had been grant probation previously 6 Prior to enactment of section 1203 legislation, prohibited generally a a defendant who committed a serious offense while armed with granting probation but an “unusual where the provided exception for cases interests deadly weapon, 706, (Former demand” the probation. § enacted Stats. justice granting ch. 1368.) § l,p. The 1975 section “unusual in in legislation exception eliminated 1203’s case” instances offense, which a in defendant uses a firearm the commission of a but contrary serious the Governor’s lead arguments People release press quoted did not uses a opinion, legislation guarantee who firearm in every person commission of serious would be denied noted felony automatically probation. As above, the denial of under section 1203.06 follows if the use of probation the firearm only in the alleged section does not specifically complaint; purport preclude discretion, his prosecutor, from such an in “an declining allegation unusual plead case” nor does it to forbid avoid purport plea cases to bargaining appropriate (Cf. v. probation. People Flores Cal.3d 308-309 ineligibility Cal.Rptr. [98 406].) 491 P.2d does not have as an Consequently, legislation “automatic” nearly effect in probation as the denying People suggest. *17 the
courts under section 1203. None of the materials to which legislative however, refer, makes mention of the People any specific question case, of 1203.06 this whether the section presented by namely provisions 1385 to a trial court’s traditional section additionally purported repeal or use In it should be strike this to power priors7 regard, allegations.8 limit- that unlike other enacted statutes sentencing emphasized recently circumstances, declares section 1203.06 ing probation designated only that its are the provisions applicable “[notwithstanding provisions of 1203”; section the section contains no all language explicitly displacing other relevant statutes.9 course, state,
It is well settled in this of that “[rjepeals by implication Park . . . .” Rextrew v. (See, are favored Huntington e.g., City of seen, Furthermore, at as we have 20 Cal.2d P.2d 23].) [128 Burke, 1975, the Howard of of section 1203.06 in the time the enactment 7 Inaddition to convicted of an enumerated offense who is to denying probation anyone firearm, found to have used a section 1203.06also to to purports deny probation anyone who suffered a the and who is found to has of one of enumerated offenses prior conviction 1203.06, (§ (a)(2), have been armed the commission of a subd. during subsequent felony. aware, ante.) in fn. the Cortez, must have under been quoted Although Legislature prior decisions of this court under section 1385 to avoid the denial of In re that a trial court the (e.g., supra), possessed power (a)(2) under subdivision probation by.striking conviction, an of such a the failed to include allegation prior Legislature any statutory to such This additional for our omission language conclusion preclude striking. provides support that the trial court’s to strike is not affected section 1203.06. power General’s office communicated with the although legisla 8 Significantly, Attorney occasions, tive committees the 1975 on several legislation advocating considering alla, of the to inter of section sentencing passage legislation supplement, provisions course, (which, to to the trial court’s to 12022.5 of had been held be subject power already staff strike v. at no time did the General or his indicate (People Dorsey,supra)), Attorney trial court’s to of the would eliminate a power that provisions proposed legislation office had strike under section 1385.Since the General’s Attorney directly participated issue, all earlier the section 1385 General surely litigation involving Attorney restrict a trial court’s would have a modification of the suggested legislation specifically to strike had such a restriction been intended. section 1385power Indeed, General conceded that section nothing at oral the Attorney argument a use striking motion of a district attorney 1203.06 a trial prevents upon —from court — determines, of his in the exercise under section 1385 if the district attorney finding the use allegation. that the evidence is insufficient support judgment, discretionary course, Tenorio, a trial court could strike (Under v. 3 Cal.3d similarly People supra, motion, own without the for insufficient evidence on its a use allegation concurrence of'the district attorney.) Having finding such a conceded that the trial court retains 1203.06, section to strike a use under section 1385 notwithstanding power finding traditional a trial court cannot exercise all of its General fails explain why Attorney 1203.06, course, which in such a case. Section contains no provision section 1385power of its under section a trial court to exercise portion authority purports permit only 1385. contrast, those of sections 1203.08and 1203.09 that clauses provide introductory 9 By added.) (Italics are other law.” sections applicable “[notwithstanding any provision of it clear that no matter how decisions had made quite Dorsey such a the terms of a provision sentencing provision appear, “mandatory” court’s under section to curtail a trial not be would interpreted that to strike in the absence statutory language specifically explicit A cardinal such restricted principle power. unambiguously course, “in adopting legislation interpretation proclaims, statutory domestic had to have existing knowledge presumed statutes in the enacted and amended and to have decisions light judicial *18 on them.” (Fn. omitted.) have a direct of such decisions as bearing 12, 183, P.2d 289 P.2d 45 Cal.2d 200 v. Chadwick (1955) [288 (Buckley 838, 845 P.2d see, 134].) 30 Cal.2d In re (1947) 242]; [186 e.g., Phyle 1203.06 contains no inasmuch as section purport- provision Accordingly, strike, must 1385 to we assume to restrict a trial court’s section power ing not be that the that the statute would interpreted Legislature recognized Code Section 12022.5 Circa as such Penal (See eliminating power. Yegan, 462, 469; Uelman, 52 L.A. Bar. J. cf. New (1977) California’s 27, Bar Law 51 State J. 82.) Marijuana Other same session as enacted sentencing provisions, legislative 1203.06, no section make it clear that the has quite Legislature difficulty a trial court’s to strike when it intends to do so. explicitly restricting power 1975, 385, 1, Code, 23102, Veh. subd. enacted Stats. ch. (See § § (g) Indeed, 1976, of after the enactment section 859.)10 p. just year 1203.06, Burke-Dorsey Legislature apparent recognition —in subdivision which does line of included separate expressly decisions— it enacted section limit a trial court’s to strike or dismiss when power which, Code, “no statute 1203.08 of the Penal an analogous probation” 1203.06.12 in other after section respects, generally patterned the interests in unusual cases where 10 Section23102 subdivision (g) provides: “Except an conviction of demand the court shall not strike a exception, prior driving] justice [drunk or term . . . in order to avoid as the sentence purposes sentencing imposing part of the minimum time in in the and the minimum probation county jail [48 hours] confinement (Italics added.) as in subdivision provided (f).” [$250] fine 11 There are two of the Penal Code which the has currently provisions Penal Code section The designated 1203.08. referred to context provision present 5052, 1976, 1135, 1, was enacted as section 1203.11 Statutes of section by chapter page 1977, 735, 1, 2325. All was renumbered and amended Statutes of section by chapter page to are to that references “section 1203.08” provision. 1153, The additional section 1203.08 was enacted Statutes of section by chapter (1977).” 3700. References to that statute will be “section 1203.08 page designated (see ante) 12 Section1203.08 fn. reads in full: law, to, “(a) other shall not be nor Notwithstanding provision any probation granted for, shall the execution or of sentence be adult imposition suspended any person convicted of a has been convicted under who as an adult designated felony previously and tried two or more times of or in charges separately brought any designated felony any moreover, 1203.08, The of section demonstrates legislative history quite subdivision, inclusion of this subdivision clearly (b)(2), separate was no means 7, 1976, inadvertent. As introduced on originally April the bill which was enacted as section 1203.08 did contain ultimately this subdivision. Bill No. 2137 (Sen. (1975-1976 On June Sess.).) Reg. 1976, however, the bill was amended in the Senate add subdivision date, On the (b)(2). Robbins, 1203.06, same Senator a coauthor section was added as a Thus, coauthor of section 1203.08. the legislative 1203.08, draftsmen of section aware of section obviously language 1203,06, additional evidently recognized necessity including in section 1203.08 to restrict a trial court’s to strike or language power dismiss under 1385. Penal Code section allegations 1203.06,
Inasmuch as 1203.08, section unlike section contained no strike, a trial court’s at least some language expressly restricting have been accede inflexible legislators may willing seemingly *19 of section 1203.06 because of their awareness that the provisions precisely section did not remove all valves” to the of in further ends “safety justice case, a either a trial court’s exercise of the section 1385 particular through or virtue of a of exercise his traditional discretion. by prosecutor’s 6, fn. (See In ante.)13 the General’s accepting Attorney proposed which, state, other of a offense place public if committed in this would have been as a if punishable all the convictions designated occurred within a felony, 10-year period. Such shall be calculated exclusive of 10-year period of time which the any period during has in been confined a or person state federal prison. (1) “(b) of The existence fact which would amake for any person ineligible probation indictment, (a) under subdivision shall be in the alleged information or and either court, admitted in the defendant or found to be true the issue by open by trying jury of or the court where is established of or or guilt nolo contendere by guilt guilty by plea the court without a sitting trial by jury. “(2) wherethe such was not true admitted or to be Except pursuant existence of fact found invalid, (1), to or not the court that a conviction was the court shall paragraph prior finds strike or in dismiss convictions or indictment. anyprior alleged information “(3) This subdivision does not criminal prohibit adjournment proceedings 3000) 3 with (commencing to Division with Section or Division 6 pursuant (commencing 6000) Section the Welfare and Institutions Code. section, in “(c) As used this means in Section ‘designated felony’ any felony specified 187, 192, 207, 209, 211, 217, 245, 288, 261, (2), (3), (4) or or of Section subdivision 460, of an subdivision 1 Section or when occurs in great bodily injury perpetration added.) assault to commit as in (Italics defined Section 220.” robbery; mayhem, rape, 420, 650, v. 13 InRockwell 18 Cal.3d Court 441-445 556 Superior Cal.Rptr. [134 1101], P.2d held we that the had intended to trial courts exercise Legislature permit discretion under section 1385 in defendants under a sentencing death statute penalty enacted to the States Supreme United Court decision in Furman v. subsequent Georgia (1972) 408 but 2726], U.S. L.Ed.2d S.Ct. in that conclusion we reaching [33 on relied indications that the had such pervasive believed heavily Legislature any 1203.06, of section the lead in essence concludes interpretation opinion that the was both decisions Legislature totally ignorant controlling this court the Court of it when enacted section 1203.06 Appeal 1975, and then in a act idle when it added engaged meaningless subdivision (b)(2) section 1203.08 the following year. fact make much of the that the
Although People legislative history of section 1203.06 demonstrates that the enacted the section courts, for discretion trial curtailing purpose previously enjoyed by this circumstance in no case from the way distinguishes present Burke, seen, situation v. As we have in Burke prevailing supra. People our court held that the of Health and Code section provisions Safety 11712, which a state sentence prescribed mandatory prison anyone convicted aof narcotics offense who had been of a convicted previously offense, similar narcotics did not a trial court from prohibit striking conviction and the defendant As the prior sentencing jail. county Burke court noted at (47 Cal.2d section 11712 derived from a 51), p. statute first enacted in 1929. ch. (Stats. As 385.) § p. initially enacted, the section that a first offender could be confined provided or state for not more than county six and that one jail prison years, convicted of second or offense could be confined in subsequent county or state from six jail Thus, months ten prison this initial years.14 version afforded trial discretion to sentence a defendant explicitly judge with a to either or state prior county jail prison. *20 alla,
In the statute amended to inter that a second or was provide, offender “shall be in the for not less State subsequent imprisoned prison than six months nor than 10 added) more ch. (italics (Stats. years” 5c, became and it was this version that 2208),15 § ultimately p. discretion would have rendered sentencing the statute unconstitutional under Furman. No similar evidence that in suggests section 1203.06 enacting the that Legislature thought removal of discretion all from the trial courts was to sustain the constitutionali- necessary of the enactment. ty 14 The 1929 legislation convicted under this act for in provided: “Any person having of the possession . . . mentioned in section 1 any drugs . . shall marijuana]. [including for upon conviction the first offense be in the or in punished by imprisonment county jail the State for not more six the than for second and each prison years, ofíense subsequent of which said so shall be convicted found said shall be person guilty, person punished by the in or in the State for not than imprisonment less six months'nor county jail prison more than 10 years.” 15 The 1935 legislation convicted this act in provided: “Any person under for having possession of the or any substances mentioned in section 1 . . drugs . shall upon conviction be in the punished by the or in State imprisonment county for jail prison however, more than six provided, that such convicted act years; any under this person . . . shall be imprisoned the State for not less than nor prison six months more than ten , if years such has person been convicted of a . . previously . such felony previous
Health and Code section 11712. amendment, the 1935 Safety Although 1203.06, like the enactment of section to have been appears specifically to intended eliminate trial court’s discretion to sentence a prior second offender to our Burke decision made clear that such a county jail, revision, without an restriction of the section strike, explicit power would not a trial court from preclude conviction. striking prior the Burke decision cannot be Accordingly, from the instant distinguished case.16 essence,
In maintain that section 1203.06 a People “special presents case” in which trial a court’s section 1385 should be curtailed power because clear intent remove all trial court assertedly legislative discretion in however, In granting probation. reality, acceptance in this case would trial a court from People’s argument logically preclude or other for in most of striking priors allegations purposes sentencing circumstances which the section has been power traditionally invoked. noted, Ruiz,
As Navarro, Cortez, our decisions in Tenorio and already Burke establish that “one of the of a trial court’s paramount purposes” is to strike enable the court or authority exceptional extraordinary circumstances to render a defendant for or for eligible probation county sentence, or for a less severe some other jail prison notwithstanding that, alone, would bar such a statutory sentencing provision standing If section 1203.06’s limitation on trial court discretion disposition. eliminates the court’s either use or strike a a impliedly finding a similar unstated prior purposes granting probation, implication would flow from all other logically mandatory provisions sentencing conviction of a is in'the indictment or true felony charged information and found to be by trial, court, trial, or found to be jury, upon true court jury by upon admitted the defendant.” 16 Although contend section 1203.06 is a which should People “specific” statute *21 take over the more terms of section it at all in this precedence is not clear “general” is context which statute and “specific” which While section 1203.06 deals “general.” with the of as we have seen that section does not address the question probation, directly Thus, aof trial court’s strike. to cases question to with the narrow class of power respect strike, which invoke the court’s to section 1385 traditional may properly power may statute, constitute the more and section 1203.06 be viewed as the provision “specific” may with more rule. dealing “general” event, In of are no than the section 1203.06 more any provisions clearly “specific” Burke, of Health and section at in or the of provisions Code 11712 issue Safety provisions or, indeed, section 12022.5 at issue in Dorsey, of the other provisions any which, in the have not been found to work a sentencing provisions past, repeal mandatory of section 1385. would eliminate the role virtually traditionally important played by section in context.17 the sentencing above,
As Burke, discussed we in v. refused to explicitly People supra, draw a such broad inference from similar and instead statutory language, that indicated if the intended to a restrict court’s section 1385 Legislature it should do so with unmistakable Inasmuch as section power clarity. 1203.06 contains no such restriction on a trial court’s section 1385 explicit I conclude that the court trial in the instant case power, retained authority to strike the use defendant on notwith- finding place probation of section 1203.06. standing provisions sum,
In California decisions that in have established past light role section 1385 in the historically important played by sentencing a will statute not be as process, sentencing interpreted abrogating accorded section the absence authority by explicit statutory that result. The aware of language mandating Legislature, presumably this well-established line of California enacted section 1203.06 authority, but failed that trial court’s traditional specifically provide authority under section 1385 was to be eliminated in this context. Consistent with decisions, I can conclude that the enactment past does eliminate only the trial court’s under strike section 1385.
If the had meant the courts of the set forth strip powers in section 1385 it should have so declared. A specifically myriad of section 1203.06 cannot substitute for interpretations single legislative that statement the latter section should overcome the former. Such a statement and I do not we legislative believe that should lacking, it, or construct a time-honored supply thereby arbitrarily removing function, the decisions. judicial long universally recognized by Newman, L, concurred. Ruiz, 17 For example, v. we held that a court could strike a supra, trial People prior narcotics conviction so to as render a defendant eligible notwithstanding probation, Health and section Code which at that time Safety provided “[a]ny person not, case, convicted of narcotics shall be violating [designated any granted offenses]
probation trial court or have the execution sentence him by imposed upon suspended court, if he has been convicted (Italics narcotic previously [designated offenses].” *22 added.) Under the Ruiz case would have been People’s analysis, unquestionably decided differently. as to the Tobriner Justice with NEWMAN, J., agree Concurring. —I in Justice Clark’s to inhere that seems cases for disregard precedential even is to aim explain why, apart concurring separately opinion. My be as sui cases, should generis, those regarded from opinion majority California’s a to as affecting evanish history” precedent likely “legislative jurisprudence. The
The issue in this case cannot be facilely. overriding analyzed and histories of statutes before us are technical legislative complex; of To several are intricate. “How Statutes them Correctly” Interpret in a and of them dealt with million more many subject pages, penned by first-rate jurists. those is that conscientious
One lesson learned from judges writings construction; “A aid minimal from so-called canons e.g., glean only to a will provision particular general specific relating subject govern , ante; 16 of cf. fn. Justice . . .” 521 of (See p. maj. opn., provision Tobriner’s Remarks on the Decision Llewellyn, Theory opn.; Appellate Are To and Rules or Canons About How Statutes Be Construed (1950) 3 Vand.L.Rev. 401.)
Valid and reliable rules of do exist. Three statutory interpretation First, Learned them to be stressed here. in the words of Hand: ought ‘intended’, we another “When ask what usually legislature] Congress [or answer, there can we be no if what mean is what any person group do, and had Flinch as we what we must mind. persons actually may, do, ourselves, can, those is to as best we into the who position project words, uttered the to would have dealt them how with they impute 199 F.2d the concrete States v. Cir. (United (2d 1952) occasion.” Klinger added, that he can “He who 648.) The distingúished justice supposes result, is fitted be certain of the the least attempt.”1 Second, a should all histories and related judge approach legislative extrinsic aids with observable caution and care. data. are also They They shards, are too most of to tell the time us much about the fragmented urn it. whole or the deeds of those who craft helped case, I 1 In on the basis of the record in this outline what appears subsequent pages, Mr. have bill Sacramento and summer of happened during Deukmejian’s spring Via and other were urged 1975. oral he counsel argument correspondence help us to as as accumulate a record that would enable articulate a narrative complete possible. however, still, record The scantiness of the forfends all feeling certainty.
539 Third, authentic that laws be exam- interpretation requires complete ined. use To from is “When an laws snippets perilous. attorney begins list all without statutory complete analyze possible ambiguities who in affect his he is as vulnerable as words that engineer inquiry, Sentences, sections, and calculations relies on an formula. his incomplete from to end.”2 whole statutes must be read beginning in with that Here we are concerned words chapter specially appear in 1004 of laws the California enacted 1975. That chapter Legislature to, of, 1203 Section 1203.06 “An act to amend Section and add labeled Code, are set Both those code sections the Penal relating probation.” 1203.06, lines; verbatim; in 43 lines. § forth 107 § Section 1203.06 is the basic statute we must construe. It begins, . . Section 1203 . shall not “Notwithstanding provisions [probation be to . . . who used a firearm italics are (The granted [a]ny person [etc.].” mine. Justice Tobriner has set forth the full text in fn. his 4.)
The issue in this from the trial court is whether the precise appeal its drafters wrote Legislature though “Notwithstanding provi- —even sions of instead, Section meant to really say, “Notwithstanding 1203”— other of law”. The issue arises because the any provision has statutes that are placed many probation § analogous 1203.06 Code, § title of the Penal chapter where 1203 and § part 1203.06 also Yet § most of those statutes do not appear. mention 1203. § that, rather in certain kinds They (not of cases provide this including case), not be other probation may granted “Notwithstanding any . law . . .” provision between “Notwith-
Illustrating Legislature’s having distinguished other, of Section 1203” and more standing provisions comprehensive is this short of several statutes to our phrases summary pertaining here: analyses With
(A) 1203.06 and 1203.07 (both § enacted in § which 1975), begin 1203”, of Section we must “Notwithstanding provisions compare 1203.08 § (enacted 1976) 1203.09 adjoining (enacted § 1977), which other of law . . . .” begin too “Notwithstanding provision (See any Justice Tobriner’s re comments 1203.08 on 533-535 of his § pp. opinion.) 645; Frankfurter, 2 Newman and on cf. Some Surrey Legislation page Reflections (1947) 47 use of legislative on the Statutes Colum.L.Rev. 543: “Spurious Reading of so as to to the when give only must swallow legislation point quip history to the statute.” is doubtful do go legislative history you *24 540 1202.5, With which deals with theft and
(B) § which was probation, 1978, enacted in and which reads the of Notwithstanding provisions “[H] 1203.1”, Section 1203” and Section we must Notwithstanding “[1Í2] in 1203.14 (enacted in 1977); (enacted 1973), § § compare 1170.1(g) 1203c in (enacted 1935), in and 2601 1208(a)[2d (enacted § § 1972), § 1Í] (enacted each of which other 1975), provides “Notwithstanding any of . . law . .” See too 12032 § provision (“Notwithstanding any provision of law or of local ordinance to the any contrary”).
(C) words that in effect do seem to “Notwith- Generally parallel other of law” we must consider laws such as standing any provision 264.2 shall not (“Probation § be 12311 (“No § granted exceptions]”); [no . . . shall be 337a.6 and and also (a) (b) § person granted probation”); Health and Code 11550 no event the court the (“In does have § Safety cf. v. Ruiz 14 Cal.3d 166 power”; People Cal.Rptr. [120 534 P.2d and Senate Bill No. 278 712]); 1975 amended 1203 (which § and it added as read when introduced Senators Deukme- 1203.06) § by and on 1975. Their which 1203(d), § jian Presley January original allowed no was of course the Assem- allegedly exceptions, changed by 28, 1975, amendment of discussed below. bly’s August from flows also Penal Code 4. It declares that all the § Enlightenment code’s are to be “construed to the fair of provisions according import terms, their with a to effect view its and to In objects promote justice.” truth, what seems be the fair of import “Notwithstanding of Section 1203”? Is it not that the words of 1203.06 are to § provisions of what the has 1203? To § apply regardless pronounced conclude that those words quoted (“Notwithstanding provisions unamended, Section still also that 1203.06 is to override 1203”), § import laws other than seems distort 1385) § § (e.g., plain meaning, extend the words so that voice not what the intended but they drafters rather what some now think those should have intended. people drafters that in this case written suggests
None of the my colleagues by opinions exclusion § 1203.06’s I thus § limiting propose, interpretation Code or the of the Penal goal obstruct would in “objects” any way 4 of § tests by prescribed specific Accordingly “justice”. promoting it, been met. have code, we are to construe on how Aids Clark’s Extrinsic Justice that his and his colleagues’ Justice Clark’s majority suggests opinion as to the conclusion “Notwithstanding provisions meaning Section 1203” is supported pertinent “by timely expression intent when section 1203.06 was enacted” legislative existing (p. documents; He cites three Counsel “sum- maj. opn.). Legislative memo, a Senate committee staff release issued
mary”, press The Governor’s office. reads Counsel document as follows: Legislative *25 law in unusual cases in the interest “Existing provides, except justice, of for denial of ato convicted of or probation person robbery, burglary arson who was with armed at the of unlawfully time deadly weapon crime, arrest or or ato of perpetration convicted person previously any felony. law also in unusual cases in “Existing the interest provides, except of for the denial of to a
justice, who is of convicted other probation person felonies while specified armed with a or unlawfully deadly weapon, convicted aof in crime which a is used or to be weapon deadly attempted or used in which convicted, or inflicted or who has great bodily injury been felonies, twice convicted of and for various other previously crimes.
“This bill would revise these so that and (1) provisions probation denied, of in sentence would be without unusual suspension any exception cases in the interest to who uses a firearm the justice, any person during of felonies, murder, of commission various first including robbery, degree assaults, but and various and burglary, prison escape, rapes kidnappings, would not be denied in on the of such cases probation ground solely armed with a firearm in the of use as absence unlawfully being specified above; denied, (2) of sentence would be probation suspension without unusual cases in the interest any any exception justice, of who is of armed convicted such felonies while person during previously or at commission of armed the time any subsequent felony unlawfully of arrest of on of a conviction instead denied being ground previous of of this bill would retain the for denial any felony; provisions but cases in the interests would unusual probation, except justice, limit the as relate such using, application provisions they presently use, with armed weapons, attempting being deadly unlawfully than was convicted once cases other where a any person previously other than firearms. felony, deadly weapons
“This bill would also delete an which is existing provision, inoperative, relative to the concurrence the district requirement attorney in certain cases.” (Italics added.) grant probation it was the bill when with were four
Those printed paragraphs or added was altered Not one word 1975. on introduced January on in the Senate was amended Counsel when the bill May the Legislative us, that concerns on 28. The in the 13 and phrase August again, Assembly, 1203”, was not included in the Section “Notwithstanding provisions of 28th amendment. its bilí until passed August Assembly his after Counsel not revise did the summary Why Legislative much too and his staff were 28th amendment? he busy Possibly August A final, session. of that hectic juridical legislative days during not? however, no revision was is that appropriate. Why explanation, that the above four Because the Legislative suggest paragraphs quoted an on, more than the bill as Counsel, from nothing regarded January *26 23 and Because both to 1203. is that so? Januaiy amendment § Why to amend Section “An act bill were labeled 13 versions of the the May of the and when words Code, to 1203 of the Penal probation”; relating 1203 and 28, from were, § removed on amendment August proposed add, at the 1203.06, was to utilized to create change pertinent § only 1203 of Section 1203.06, of provisions “Notwithstanding § beginning [99] “without he said Counsel mean when any
What did Legislative the words (See in the interest of in unusual cases justice”? exception above.) of his third in and (1) (2) italicized quoted paragraph parts 1203 of from the exclusion § what he meant was that Apparently the words would not (See in the interest of “unusual cases apply. justice” above, of the also (3) 1 2 italicized in part quoted paragraphs law”, 1 and in His third paragraphs “[ejxisting paragraph.) phrase cases 1385 or to the line It refers to 1203 does § § only. of refer discussed in Justice Tobriner’s opinion. Memo The Senate Committee Staff are Counsel’s Justice that Clark Legislative paragraphs says as that the bill with a staff memo consistent (apparently stating “Prohibits, without on Jan. 23) introduced exception, granting in connection firearms carried or used who have persons probation under be obtained crimes, for which existing certain with may probation that Unfortunately in the interests law in unusual cases justice.” B of the in The memo bobtailed. appendix has been appears quotation forth its therein set 1976. As on October brief filed General’s Attorney “Prohibits, without granting reads: exception, paragraph opening 543 in or connection who have carried used firearms, probation persons under crimes, be obtained with certain for which existing probation may & subd. (1) (2), (d), in cases in the interests law unusual justice (paras. Sec. Pen. C.).” (2),
What is the of that citation & subd. significance closing “(paras. in the Sec. Pen. which not mentioned (d), C.)”, opinion? majority memo, It tells us that the writer the Senate committee like Legislative Counsel, was concerned with His reference was to the § only. and its of “unusual 1203(d) § exclusion cases the interest existing in the memo or in other document Nothing six-page any justice”. the writer or the Senate committee ever considered the suggests 28th amendment on 1385 or on the cases stressed § August impact A, Justice Tobriner. the memo’s full text in The (See annex infra. words “without 2 on involve the comment exception” clearly page reference in comment 1 on 1203(d)’s exclusion § page (“Except ‘unusual cases’ where would serve ‘the interests of ”). probation justice’ No words in the memo of or concern express imply any knowledge with other Penal Code section.3) any
The Governor’s Press Release *27 The release from which Justice Clark press appears quotes appendix A of the 8, General’s brief filed on October 1976. is Attorney also in (It B, annex It indicates that the infra.) Governor with some did vehemence declare his views on “those who to use commit crimes”. Yet none of guns its words indicates that the Governor or his advisers had any knowledge intention with to the crucial regarding legislative respect phrase the of release, Section 1203”. The like “Notwithstanding provisions press the memo, Counsel document and the Senate committee Legislative 3 Justice Clark’s fourth footnote one sentence from an American Civil Liberties quotes letter (see Union of 1975 to the Governor. A of the entire September letter reading C, writer, writer, annex discloses that its like the memo’s was infra) Senate discussing (See, the § ACLU letter’s fifth Also of interest is that the only. e.g., paragraph.) ACLU merited no mention in the the Senate “HISTORY” that introduces paragraph memo as follows: “Source: General Attorney “Prior SB 237 Legislation: in Assembly —held Committee on Criminal Justice Ass’n; Calif. D.A.’s & P.O.’s Hueneme “Support: Women, Federated; Bay Republican Irate Committee Taxpayers Probation, Parole, Calif. & “Opposition: Correctional Ass’n; Chief Probation Officers Ass’n. Calif; Calif. Public Defenders Ass’n.” 28th no whatsoever that affects
evidences official concern August too the second cases. (See amendment or Justice Tobriner’s § fn. 6.) Justice Tobriner’s paragraph
Other Aids Extrinsic documents, some us to a other have referred Counsel congeries instance, Consider, for General’s merit comment. which Attorney invite court’s March which reads letter of part: “[W]e of the Chairman to view of Alan attention Assembly Sieroty, Katz, an Louis in a with on Criminal Justice Committee colloquy from the Criminal Defense San Lawyers Diego, representing attorney makes it clear from This (see excerpts hearing, supra). attachment — of the court understood that the discretion the chairman of the committee This consistent all to eliminated. with strike had been allegation court, a view it is although legislative histoiy presented be it may passage legislation, subsequent expressed considered.” as was The inference. reported
That is colloquy paraphrased puzzling case, Sieroty: armed An robbeiy (italics added): follows “Chairman now, the would law our Katz, Under judge is kind Mr. interesting. them no discretion have grant probation. SB 42. under That’s
“Mr. Katz: right; Sieroty: That man would it? 278. under was go No, “Chairman The He only would have probation. any opportunity prison. *28 as to district that could convince the would be attorney, you opportunity else. the or what to and he something charge, say, might change Well, the . . . if strike “Mr. Katz: they allegation Sieroty: of utilization of a Strike the weapon allegation “Chairman has what that bill in situation. So Then there would be robbeiy. different the done is to who exercises discretion? change The district instead the “Mr. Katz: attorney judge. Sieroty: in is I see That’s That what right. happening
“Chairman this process.
545 And that’s what concerns me that the Katz; really charging “Mr. does, have the to decide who the'district will authority, doesn’t, attorney, the Judicial the Without benefit of the go prison. System, true, has, district relies on the and he report, attorney police maybe, record, how he is man’s but then about defendant charges past trial, sentenced, either he or how the man to be goes deciding going armed, because if an has no charge they allegation being judge discretion, and this is the we’re concerned . . .” about. thing words,
What was meant the chairman’s “Strike the exactly of utilization of a in Then there be a would allegation weapon robbery. inferences, submit, situation.”? I The are (1) only justifiable different both the chairman and Mr. Katz indeed did know about 1385 the § and that the chairman “strike” cases as “differ- exception, regarded ent”, relevant but nonetheless his generally perhaps beyond scope into Senate No. Bill and 1203.06. on-going § § inquiry There are also letters from to the and General Attorney Assembly committee, committee, its to the Senate and to the Governor. I have D, E, F, them here annexes because (as G) appended they first, starkly second, decorate it footnote in Justice Tobriner’s because opinion;4 will be seen that none of them contains hint that its author’s concerns any . the Section extended “. . 1203”. any way provisions beyond
“Subsequent” Legislative History Readers recall that the above from General’s may excerpt Attorney letter of March “a recounts view to the expressed subsequent views like that one which passage legislation”. Among many might have affected our most were and commented holding, expressed upon recent radio, months —on TV and editorials, during letters dispatches, editor, to the in tavern and town. The of this politicization proceeding 4 Also Justice Tobriner’s supplementing opinion, albeit informally warrantably, are these reported 2): comments in the News Metropolitan April (p. “Deputy Dist. Maurice Oppenheim, who the case the first Atty. argued go-around the District Assn, (as curiae), amicus said that showed Attorneys Gen. Atty. George Deukmejian [|] as a state law. ‘unsurpassed senator the ‘use ineptness drafting gun, go prison’ He said that on law’ in Deukmejian, criminal though expert *29 ‘foremost ’ and a had all the lawyer, cases’ on in ‘card-carrying ‘ignored prior judicial powers drafting (Italics added.) the bill.” 22, states, A letter of 1977 to court from with this Mr. Maurice September Oppenheim filed, reads, to a had brief he is not often an respect sentence ‘Purity impediment “[T]he read, of successful It should to is not be corrected an legislation.’ ‘Purity always ingredient ” of successful legislation.’ A shrill,
after of 1978 the summer became clamorous phantasmagoric. well-financed, ambi- and nurtured by campaign inspired experienced, — tious, still and “hard on crime” advocates —has had a posse-like in incalculable but dismal on the California. judicial impact process us, to As to Court of and then case first the this presented Appeal might a have been a useful vehicle for much-needed examination of questions In courts. and its use subsequent legislative history proper by
involving 20, our on “the letter of 1979 to counsel we comment February sought hoc declarations in utilizing legislative advisability post litigation H, annex (See generally”. infra.) that to Its needed examination will have be
Regrettably postponed. caricatured, essential has been focus somewhat in several briefs bizarrely, before, and other statements made and after on oral argument during, it here. Thus not to is for us this rehearing timely yet reweigh oft-quoted dictum Lords, in Hilder v. A.C. I more Dexter 477: have (1902) “My than once had occasion to that in I the statute believe say construing worst it construe is the who is for its person person responsible He is much what he confuse intended to do drafting. very disposed with the effect which in has been See fact language employed.”5 II of the State Public Defenders’s brief filed March amicus on part the statement in and (“The Condit Hanelt brief legislative regarding intent unreliable and irrelevant this case and should be this on considered Final of the Subcommittee court”); by Report seriatim; Rules Intent the Committee on (1963) Legislative Assembly 634; Cal.L.Rev. Forsyth, Declaratory Legislation California Dickerson, of Statutes (1975) The page Interpretation Application would 181: court’s of deference to the legislature general duty “[T]he will of with enacted cases be better served the many acting consistently by will, later the unenacted than with by acting consistently more of intent was the fact that the unenacted expression despite recent legislative expression.” argument” . . ... at oral delivery . prepared 5 Cf. General’s “remarks the Attorney Gun, News, 8, 1979; also the Court Its “Use his Should in the March Metropolitan Lift (Mar. Los Times Angeles Is Yes: Judicial Leniency Rampant, Go to Prison” Ruling? V, intended to take away I obviously 1: colleagues 1979)-part paragraph “My with abuse associated . . judicial discretion of the . because history judges them.” from following be contrasted with quotation That last reminiscence should General the office of Attorney Legislative File Analysis supplied Assembly is no there General admitted 1979: “The [predecessor] Attorney Counsel on March
. cases in those probation have abused discretion granting statistical evidence judges *30 because ahead the chroniclers this and of Finally, years rehearing whole tale lack awareness events and pertinent melancholy may I I diverse that have become so think that should pressures tangled, review some of the November 1978 to June 1979 briefly developments 1203.06. § regarding 21, trial
The court’s critical On action here was 1976. during July July 1977, action, after the Court had that a reversed we Appeal granted 6, and oral was heard on 1978. Tutored and hearing; argument February harsh comment at least as as June 1978. (See began appear early Nicholson, v. An 24, Tanner: L.A. J. (Jan. People Update, Daily Rep. 4, 6; Condit, 1979) at cf. Nicholson & The Ultimate p. p. Human Right, 23, Met. News 1978) 2.) (May p. 1977 and 1978 the could of have course amended
During the law. In 1203.06 the § phrase “Notwithstanding provisions Section 1203” could have been other “Notwithstanding replaced by any law”, “With no words. similar for provision exceptions”, Except attack candidate on October perplexing by Republican gubernatorial 11, 1978, however, 10 and the hullabaloo did till November begin “If 1978. the State out Court throws California’s law Supreme mandating terms for criminals who use Governor Brown said ... he prison guns, will lead a ‘We reinstate that law. will have fight prison mandatory I sentences if have to write the new law or a new amendment to the Constitution,’ Chronicle, 9, Brown said.” F. Nov. In (S. 1978.) early December, General-elect lead “Attorney George pledged Deukmejian to reinstate laws if are fight mandatory prison sentencing they J., overturned the state Court.” A. (L. 1978.) Dec. by Supreme Daily “A freshman . . . constitutional amendment in Assemblyman proposed of a controversial Court overturn decision anticipation Supreme may Recorder, a state law.” Dec. (The 1978.) sentencing This court’s initial 22. were filed on December “In Sacramen- opinions to, Governor Brown reacted . . .... Brown and . sharply [B]oth for reinstatement of the Deukmejian promised push mandatory prison World, criminals . . 1978.) . .” Dec. (This penalty gun-wielding The San Francisco Chronicle editorialized: “This law . . . must be covered AB by bill to Mr. This was confirmed companion [a Deukmejian’s bill]. the Bureau of Criminal Statistics.” Conduct, See too State Bar Rules 7-105(1): of Professional rule “A of the State member issue, Bar shall refrain from his at when asserting facts personal knowledge except as a witness.” Cf. Lase her at in 54 Large testifying State Bar J. column 3. page *31 it
re-enacted .... And be drawn in a that the must such California way will to if it Court have no stand on should set out to Supreme leg again Punch, 31, override the undoubted will of the Dec. people.” (Sunday to 1978. “Sen. Smith . . . said he saw no or little resistance ) Jerry passage ” Also, measure, of the since ‘all feel about this.’ legislators strongly “[t]o . a matters Smith . . received unanimous expedite by help permission the . . . vote the house to hold on measure next upper hearing Examiner, 3, F. Jan. (S. 1979.) Tuesday [Jan. 9]”. other had found that matters that the time Governor seemingly
By of the measure leadoff witness favor for more “The were him pressing. and Gen. was George Atty. Deukmejian”, newly inaugurated Republican Times, 10, A. Jan. (L. endorsed the bill the committee unanimously. it the Senate 1979. later ) unanimously.6 Two passed days Meanwhile, at had back the committee where doubts been Assembly 8, first on the attracted at a expressed January inquiry notably meeting Yet the fewer media than did the Senate questions people proceedings. seem and several raised there did more penetrating perceptive, See, to their second 6 of editorialists e.g., page pronounce thoughts. began “Now the II of 11th Los Times: that the controversy January Angeles part somewhat, the Court’s decision has abated over Supreme The statute. . . . time debate new should take the required carefully for the must have some law be must flexibility just, provide cases’ cited Tobriner.” ‘extraordinary by of new and the action was
Committee prospect postponed, eventually Banner’s See the San Francisco is blurred. Assembly bypass legislation , 4, a ‘death wish’ Michael . . . 1979 (“labeled all bills May sentencing Rushford, of Commerce Anti-Crime director California Chamber from in The also the related Sacramento dispatch Department”); Recorder, 10, Criminal Committee Justice (“the May Assembly two moderate measures on ill mentally yesterday dangerous approved offenders, other, killed but sentencing proposals”). Concerning tougher Nicholson, views a former Alameda prosecutor “George County Association, and Rod who for the California District lobbies Attorneys Chronicle, Francisco 6 Inits on Senate floor San lead regarding happenings story “ 1, it can tattoo across the forehead of we reported: ‘Perhaps January page court,’ Richardson, R-Arcadia.” Cf. Removal Nugent, conservative Senator H. L. snarled 140, 142, fn. 24: “In Action 6 J.Legis. Judges by Legislative Superior . . In ruled unconstitutional. . a fit legislative pique, Court Rhode Island a statute failed, The effort but the the lawmakers court. attempted impeachment impeach at next session.” the court somehow failed re-election judges General Deukme- Blonien, chief George legislative lobbyist Attorney had earlier (Feb. 5) the San Francisco Examiner p. reported jian,” *32 terms for all is for an omnibus blanket “their bogging mandatory hope these to turn down, staff review of laws as a up begins legislative and anomalies.”7 inconsistencies have the months that above, that seemed needed
As noted all during 22, 1978 a amendment that December was followed replaced simple of Section 1203” with the “Notwithstanding “Notwithstanding provisions date, the To other of law” or an any provision equivalent phrase. the ex to observe have chosen many representatives Assembly’s 547-548 the on edicts my preceeding pages cathedra by quote typified Chronicle, the San well as these words from as the San Francisco from make its “The should 1978): Examiner (Dec. Francisco Legislature that never could be raised clear on this law that issue by so intent again I it Act as make achievement of the And it should this court. goal face of the New Year.” the tasks assembles
Conclusion what his has advised as to he and The incumbent General Attorney that intended”. Justice Clark’s pronounces colleagues “obviously opinion intent”. has not assisted us its “the Legislature discerning states, “The Justice Tobriner With greater legislative perception no the trial court’s ... is pre-1975 probation disapproval practice by a decision to leave the courts’ means irreconcilable with trial legislative intact; the have section 1385 well desired power Legislature may the trial courts’ liberal disapprove quite pre-1975 probation practice without such courts their traditional completely stripping or strike allegations findings truly extraordinary exceptional Indeed, case. lead ultimate determination to relieve opinion’s [If] a is to the Tanner of sentence prison strength eloquent testimony traditional, area, that in this recognizing underlying judicial policies in rare circumstances —unforeseen by Legislature may exceptional — sentence.” cases warrant from a departure generally appropriate 1979), 7 Cf. Prison State Bar shadows conditions crowding (May Rep. sentencing how, corralled, Instructive as to if votes have the whole can respond been and and No. which on immediately August without ruffles flourishes is Senate Bill. 25, 1978, 21 and Senate after this court’s August respectively, passed Assembly Peters, four-to-three 646, Cal.3d decision on 1978 in v. Cal.Rptr. July People [147 (At 581 P.2d was the end of it vetoed by interestingly September, 651]. Governor.) views, I share those and that four have not felt colleagues impelled reasons for their own explain fully disagreement saddening. My discussion has on evidence crucial converged regarding Assembly’s evidence, amendment believe, 1975. I That August supports that influential who the final vote desired finding legislators guide helped to restrict the discretion conferred 1203 but to retain the discretion § by conferred At 1385. first § the former section’s stress on “the glance interests of seems like the latter’s that court trial justice” requirement action be “in furtherance justice”. Analysis legislative histories the aims as well as judicial helps prove, though, *33 sections two have differed applications significantly.
Annex A
Annex B *40 Annex C *42 D Annex
Annex E *46 F
Annex *47 G
Annex *48 Annex H *49 J., BIRD, C. and with colleague, Dissenting. agree my Concurring —I Newman, case a Justice that and its this “melancholy rehearing present out, this so tale.” As he succinctly points politicization “[t]he shrill, of 1978 A after the summer became phantasmagoric. proceeding clamorous and nurtured well- experienced, campaign inspired by — ambitious, financed, ‘hard on crime’ advocates —has had a and posse-like still incalculable but dismal on the in California.” impact judicial process ante, J., (Cone. Newman, at 545-546.) opn. pp. 22, 1978, this case filed on
The decision in was December original at that time the did advocated position by today’s prevail. majority has us than (See new come before other 299.) Cal.Rptr. Nothing some additional work on Justices Newman legislative history compiled by and Tobriner. does not make to deal with Today’s any attempt majority this new material.
Moreover, the result reached this new to the majority contrary results that three of them so fewa months urged strenuously just ago. This is more than an nothing carve a attempt compromise The law has been twisted out of expediency. achieve then- shape result. To avoid criticism that unique have made a defendant they in this pawn process, him from standard majority exempt very that will be to all other And applied defendants. what is most discourag- short shrift to ing, the difficult issues of intent majority give legislative and constitutional in a rush to find solution validity headlong popular for an case. unpopular
Have we is not matter It forgotten is not a justice expediency? cloak in which we can ourselves when we its find most wrap protection is, rather, It convenient. a matter of If we principle, plain simple. *50 to maintain a characterized we cannot hope legal defer system by justice, its as to even a case that comes before us. application single
The on and constitutional challenging points legislative history validity deserve careful consideration. Yet the with discussion deals majority’s these It issues silence. would this each on primarily by appear justice court on certain basic to the of agrees principles relating separation Ill, of clause our Constitution. has As Justice Clark (Art. 3.)§ powers case, stated in has that the are this never been doubt courts any “[t]here vested under the doctrine to make exclusively separation powers to issue be a criminal adjudication any affecting penalty imposed 321, at (151 italics added dis. p. proceeding.” Cal.Rptr. opn.].) [former Yet honor this its breach. colleagues only my principle of this in no invades The exercise any adjudicatory power way for a crime. The to fix the legislative power range possible punishments on a defendant does not of a sentence prescribed imposition legislatively to to come about until all the issues and factors relative and guilt after have been After the punishment finally adjudicated. adjudication process is court the trial within the limits of completed, pronounces judgment* and the other options provided by Legislature provisions 410, Constitution In re 8 Cal.3d 414-415 (see, (1972) e.g., Lynch [105 217, Thus, 503 P.2d and of the court 921]). Cal.Rptr. legal power duty sentence render a within are those limits distinct impose judgment from its issue to be legal power adjudicate “any affecting penalty imposed.” the latter of the court is
Only involved in the “adjudicatory” power case. Before sentence or present could have been any judgment imposed on Mr. Tanner the trial that Tanner had used a judge, allegation firearm within the of Penal Code section 1203.06 had to be meaning at The finally (Post, 558-559.) adjudicated. was pp. not adjudicatory process at the time the rendered its verdict. It completed was jury completed until the trial ruled on Tanner’s motion to strike the use of a judge collected, firearm. cases (See fn. and post, text.) accompanying atp. Since it is clear that the courts are vested under the separation powers doctrine with the for the issue responsibility adjudication any affecting a criminal to be that constitutional penalty was imposed, principle violated when the to itself both Legislature attempted arrogate as well as the function. adjudicatory sentencing Since has since this court’s initial nothing changed decision was filed 22d, on December my original concurring is set dissenting opinion out below.†
This court should not substitute its for that of the judgment Legislature when an issue of is involved. We “must full statutory interpretation give to the intent of the v. Caudillo weight” Legislature. (People Bird, Cal.3d 580 P.2d C. (cone. Cal.Rptr. [146 opn. 274] After consideration of J.).) of Penal Code section legislative history 1203.06, I Manuel, Richardson, with Justices agree my colleagues, Clark, that the intended to remove from courts the when an individual is convicted of one of the felonies give probation enumerated that section and a gun displayed. *51 is with the * “[J]udgment synonymous of sentence . . imposition .” (People [citation]. 678, 682, (1978) 20 v. Warner Cal.3d fn. 1 574 Cal.Rptr. 1237].) P.2d [143 of the. citations in my as it is original opinion, set forth in † Some which pages
follow, (151 refer to the filed ihtfiis 299.) case. previous opinions Cal.Rptr.
571 However, more end our for this case involves this does not inquiry, an of office As we have taken oath than interpretation. statutory judges, Thus, state. when a enactment the Constitution of this legislative uphold Constitution, this court cannot defer contravenes the and remain true to its constitutional mandate. However controversial the the court cannot avoid an issue which to “the core goes very question, our v. Anderson Cal.3d (1972) judicial responsibility.” (People also, 493 P.2d see Amador Joint 880]; Union Cal.Rptr. [100 Valley 208, 248-249, v. Sch. Dist. State Bd. 22 Cal.3d High Equalization 256-257 583 P.2d Bird, and (cone, dis. Cal.Rptr. [149 opn. 1281] C. If we were to J.).) shrink from the oath, of our the Declara- obligations tion of would become To decide Rights cases based on what meaningless. is most at the moment will popular as ultimately destroy judiciary third branch of government.
This case an issue that to the our heart of presents existence as an goes III, Article independent section of coequal partner government. the California Constitution executive, that the requires legislative, be exercised the three powers branches of judicial separately by If we are remain faithful to that government. section of the Constitution, must we affirm the of the trial court. judgment
I This court must the difficult task of itself perform from the removing of the moment without politics itself from the realities of the isolating No one condones the use of a day. firearm to secure an end. As illegal we share with all citizens the judges, sense of at those who would outrage take life of another at property Justice and for gunpoint. respect human life demand from us. less Such actions not nothing only injure individuals, tear at the they fabric of our But as inevitably society. just human life is eveiy human is irreplaceable, and each every being unique situation must be judged individually.
The actual issue before us has been obscured a number of by myths. such is One that a defendant who is myth avoids granted felony probation fact, incarceration. In an individual who is on placed probation receive to one in the for each offense he felony may up year county jail has committed. That is what in the case. exactly happened present
That is not the this case. The “Use a only myth surrounding slogan has been as an accurate of Penal gun, go prison” portrayed description 1203.06. As is often the with their Code section case slogans, simplicity If a uses a in the exceeded their inaccuracy. gun only person offense, of an he is not denied nor commission necessarily probation *52 to state Section 1203.06 does cover required prison. go many serious crimes. For if an individual commits an assault with a example, Code, (Pen. subd. and he shoots and wounds (a)), § deadly weapon victim, his he is for Nor does 1203.06 section eligible probation. apply other felonies such as assault or on a officer dangerous battery peace Code, assault (Pen. 243), with a on a §§ officer deadly weapon peace Code, (Pen. subd. in a (b)), § serious battery resulting bodily injury Code, Code, arson (Pen. 243), child molestation (Pen. 447a), § (Pen. § Code, Code, Code, 288), (Pen. 405a), (Pen. § 203), § §" lynching mayhem Code, forcible and forcible (Pen. 286), oral (Pen. § sodomy copulation Code, (Pen. felonies such as second 288a). § degree burglary Similarly, Code, with the use of a firearm 460) §§ are excluded from the scope of section 1203.06.
Further, the has discretion as to prosecutor whether to complete invoke section 1203.06 in those cases where it He decide not to applies. may a firearm has been used even when it has. allege Even after the use of a firearm has been move to have alleged, prosecutor may allegation Code, stricken. Pen. (See 1385.) § The to dismiss prosecutor may agree the firearm for a allegation exchange guilty plea underlying offense If the during plea to a bargaining. prosecutor agrees “charge- he allow a defendant to to an bargain,” offense may which plead guilty not covered section 1203.06.1
The in all these cases is that even a point firearm have though may used, been the offender is not of his automatically stripped eligibility and sentenced to state probation The so-called law prison. mandatory gun is not at In 1203.06, all section has in effect mandatory vested in the branch, of the executive all representative prosecutor, discretion as to a local with a sentence) disposition (probation county jail and withdrawn such discretion from the branch. totally judicial has been considered an
Historically, sentencing inherently judicial function since it a neutral who will consider requires magistrate fairly 1203.06, both sides of a In Penal Code section question. enacting intended to remove from the court the Legislature apparently when an individual is found to have a grant probation displayed gun while After one the felonies enumerated that section. committing 1 Further, under certain circumstances section 1203.06 but it may preclude probation, does not require commitment to state An offender prison. be sentenced to the may old; California Youth if under 21 Authority to the years California Rehabilitation Center if a narcotics addict or in imminent addict; danger becoming narcotics to a state or “an hospital appropriate public mental health private if the offender is a facility” treatment; disordered sex mentally offender who could benefit from such or to a state if the hospital offender is a retarded who mentally is a to himself or person others. danger
573 I much am a convinced that such fiat violates the thought, legislative III, of article 3 of section the California Constitution. express provisions to what can and cannot do in with By dictating judges they adjudicating factor, to a enhancement the violated has respect penalty Legislature basic of of and taken from their principles separation powers away judges historic to match the to the facts of the individual case. power judgment the
Consider facts now before us. An trial who experienced judge, matter, handled this found it be a rare case.” nature The of “very, very offense was described as “bizarre.” (151 301-302 Cal.Rptr. The detective maj. from sheriff’s office opn.].) [former investigating recommended that Mr. Tanner “be on with a short placed probation sentence.” The detective did “not feel that the defendant a county jail is candidate State Prison.” felt He that Mr. Tanner’s record “good up offense” was an factor to consider that present and “the important defendant learned a lesson.” ha[d]
The trial concluded Mr. Tanner “clean that had a judge background” that firearm was “no unloaded at all relevant times with real intent to use as such” demonstrated. Mr. Tanner had weapon being [the] been from the after service in Korea. honorably discharged Army he had been the of a store’s branch Formerly manager large department divorce, in the East a a he into Bay. Following slipped long period He no had criminal record. The trial concluded depression. prior judge that in this unusual case he would incarcerate Mr. Tanner for one year five with a state county jail, require years probation suspended sentence. The once is prison Does the question again posited.
have the from power this preclude judge considering punishment when a factor enhancement is The penalty present? legal question one of the of constitutional ultimately separation powers.
II
It
is the constitutional
this court to ensure that the essential
duty
are
functions
branch
from
judicial
government
safeguarded
(Cal.
encroachment
executive branches.
legislative
coequal
Const.,
Ill,
art.
Three
court has unanimous
3.)
times
this decade this
§
held
that
courts alone have
determine whether
ly
sentencing
3
89
should
v. Tenorio
Cal.3d
(1970)
be enhanced.
penalty
(People
[89
(1971)
473 P.2d
In re Cortez
6 Cal.3d
993];
Cal.Rptr.
Cal.Rptr.
[98
490 P.2d
Ruiz
Article provides “[t]he executive, and The of state are judicial.” government legislative, powers *54 of is the Constitution in the state vested judicial by power government IV, Const., Const., VI, 1; cf. art. 1 art. Cal. (Cal. courts alone. § § [“The of vested in the California this State is power Legislature legislative Const., V, . . . Cal. 1 executive of this .”]; art. § power supreme [“The State is vested in the Governor.”].) with the that charged Constitution further
The “[pjersons provides exercise, not exercise either of the of.-pn.e state may government] power [of Ill, Const., art. (Cal. this Constitution.” as others by except permitted “the of of Thus, powers, of this because 3.) separation requirement § the of not be conditioned upon approval of a exercise may judicial power . . .” . of branches government executive or the either legislative 524, 119, 127 5 Cal.3d (1971) Cal.Rptr. Court [95 v. Municipal (Esteybar and a must be judge “The 1140].) independent, 485 P.2d power judicial Tenorio, its v. exercise.” to (People never be pay should required 94.) Cal.3d at 3 p. supra, 20 that “in
This court more than suggested years respect ago and determina vested the constitutionally judicial power” adjudication tion of enhancement factors are the penalty “inherently essentially 45, of the v. Burke 47 Cal.2d 52 P.2d court.” (1956) province (People [301 The court a trial inherent constitutional reasoned that has 241].) judge the of “control the under clause to separation power powers proceedings it insofar as of the are before the essentials concerned process judicial of is . .” and that such “essentials the the . among process” power judicial of or or dismiss as to or all counts of “to strike charges prior any multiple Schauer in his {Ibid.) As Justice later noted dissent conviction.” explained v. Sidener 58 Cal.2d 665-666 375 in Cal.Rptr. People [25 “A of conviction found to P.2d which is be true now 641], charge prior and far on has serious effects the offender reaching punishment Thus, concluded, . . . .” he and determine hear “the power a such . . . must... deemed be important question dismissing charge an essential of the an constitution part judicial process implied [and]... al of the courts of this state.” at fn. (Id., omitted.) power p. court, Schauer’s was this Justice dissent Sidener and the by approved Tenorio, of Burke v. Cal.3d 89. were People applied, supra, principles Tenorio, which In had a statute forbade a promulgated at from sentencing judge exercising sentencing “judicial power (3 motion to without the consent a strike prosecutor. priors” grant to strike is an 93.) at This cou’rt held “the Cal.3d power priors p. vested Constitution (ibid.) essential by part judicial power” Therefore, of that could in the courts. the exercise exclusively branch or of another be overruled curtailed by representative with The Tenorio was consistent basic clearly government. premise made, Burke: “When the decision to has been process prosecute which leads or to judicial acquittal sentencing fundamentally nature.” (Tenorio, Cal.3d at 94.) supra, p. Cortez,
Tenorio was followed 6 Cal.3d one later In re supra, year which involved a defendant who had been convicted offering selling to sell heroin2 with At the time narcotic conviction. prior felony *55 sentenced, defendant was to be former Health and Code section Safety 11715.6 that no case shall of convicted provided person any [selling “[i]n court, or sell to be the nor trial offering granted probation by narcotics] shall the execution of the sentence such be imposed upon person court, the of if such has been convicted suspended by person previously 1961, 274, offense described in . . . .” (Stats. this division ch. felony any 12, 1308.) the statute to an § p. Although prohibited] probation” “flatly Cortez, (In individual who had a narcotic conviction re prior supra, felony VI, 6 Cal.3d at court held that III and article section 1 85), this article p. of the California Constitution the trial court to strike the permitted prior conviction in order to make the defendant for eligible probation. Ruiz, 163,
In v. 14 Cal.3d this court reiterated People supra, the of in a case separation applied powers indistingui- principles legally Ruiz, shable from the case. In had the defendant been convicted present at trial of for of sale heroin with a conviction for possession prior felony of narcotics. On the for sale conviction was possession appeal, possession reduced to The case was remanded for simple possession. resentencing, even the defendant was still for though “technically ineligible probation.” at 166.) 11370, (Id., Health and Code section (a)3 subdivision p. Safety not, that convicted of of shall provided “[a]ny person [possession heroin] case, in be the trial court or have execution any granted probation by court, of the sentence him he if has been imposed upon suspended by convicted (Italics added.) previously [possession narcotics].” court, Ruiz The with Clark held that Justice concurring, my colleague the trial court could to strike the conviction in order place prior 11370, defendant on of section probation. Despite language defendant was held to be to a wherein “entitled new hearing probation offenses, 2 When the defendant in Cortez committed his to selling offering sell heroin now, (see was former Health and Code section 11501 proscribed Safety Health Saf.& Code, 11352). § 3 Health and Code section was Safety 11370 a recodification of former Health and 11715.6, Cortez, Code section which had been the statute involved In 6 Safety re supra, 2, 1407, 2987; 1972, 3, (Stats. 3020.) Cal.3d 78. ch. Stats. ch. p. § § p. to his the court a new relative make probation judgment may fitness for Ruiz, v. convicted.” of the he now stands crime (People
light which The constitutional this added.) Cal.3d at italics origin supra, p. reference was the court’s holding “comprehensive reemphasized by discretion.” (Ibid., constitutional italics range [sentencing court’s] added.) is in all relevant in the involved appeal
The statute present respects and Ruiz. (See in Cortez discussed to the statutes Cal.Rptr. identical three All statutes fn. 7 purport at maj. opn.].) deny p. [former when certain factors defendants have penalty-enhancing probation true. Since the trial court could strike the found to be been enhancing Mr. and Mr. Ruiz to find Cortez factors order eligible probation, had lower court in this case that same power. Clark, The dissent Justice shows a basic misunder- by my colleague, of the constitutional That dissent concedes issue standing presented. “the courts are vested under the doctrine exclusively separation powers to be make issue in a imposed adjudication any affecting penalty *56 321 criminal at dis. (151 proceeding.” Cal.Rptr. p. opn.].) [former However, it that not the issue here. Our concern is is “that is with urged the made the to be once has been the imposed adjudication by penalty court.” (Ibid.)
With all due the issue the concedes the dissent is issue respect, precisely this A before court.4 on a motion to strike a judge’s ruling penalty 4 Thisconcession contradicts the dissent’s contention elsewhere that the judicial power rather to strike a enhancement factor is not vested” but “is “constitutionally penalty ( enactments” such action. 15 at Cal.Rptr. p. 320 dependent upon legislative authorizing dis. opn.].) [former event, is to strike is In this contention without merit. an power priors "any “[T]he Tenorio, 93) v. 3 Cal.3d at supra, p. essential part judicial power” (People is in the the clause of therefore vested alone of our separation powers judiciary by Penal 1385 or Constitution. Statutes such as Code section former Health and Code Safety 11718, strike, which refer to the to are “evidential of” that section court’s power merely 199, (1957) 49 P.2d 633].) v. Valenti Cal.2d 206 (People power. [316 definition; in “Certain of have received but each implied powers legislative [the court’s] Thus, the neither created the defined. instance enactment nor circumscribed thus powers . . Penal 1385 ... is of to in a particular . Code section not a jurisdiction dispose grant court, the it. virtue of of actions before The the constitutional pending by provisions way and, mentioned, to above has the complete fully adjudicate subject only to already power review, of, in the grant.” all causes constitutional encompassed judicial finally dispose Schauer, J., omitted, Sidener, (dis. fn. v. 58 Cal.2d at opn. 656-657 (People supra, pp. 206; Burke, Valenti, v. in v. 49 Cal.2d at (1951) People italics see also original); People supra, p. 656, 52; 658 v. 107 47 Cal.2d at Bates Court Superior Cal.App.2d [237 supra, p. 544].) P.2d that Penal Code section that court in Cortez found The dissent asserts this seriously the prior the trial court’s to strike authorization for power 1203 provided legislative
577 factor for enhancement is itself purposes sentencing part of a sentence imposition process; adjudication required permitted this statute adjudication. by follows court,
This is
from
of this
numerous
decisions
some of
apparent
prior
which
in
are cited
Justice Clark’s dissent. For
v.
example,
People
Burke,
52,
47 Cal.2d at
this
court stated
supra,
page
judicial
determination
of a
to
motion
strike a
enhancement
factor at
penalty
is
the court even as
sentencing
“inherently
essentially
province
which
or must
the offense
either
punishment
may
adjudicated,
follow
factor,
with or without a
for the
punishment augmentation
essentially
.
.”
Schauer,
. .
(Italics
Justice
added.)
his
Subsequently,
Sidener,
653,
dissent
v.
58 Cal.2d at
noted that a
People
supra,
page
to
motion
strike
conviction
is “a motion
prior
sentencing purposes
action,
made
ain
criminal
on
prior
entry
judgment
felony
ruling
which will affect
the substantial
defendant
under
rights
As the
in the
(Italics added.)
dissent
case
judgment
present
follow.”
(151
6
dis.
at
fn.
Justice
recognizes
Cal.Rptr.
p.
opn.]),
[former
Schauer’s
in Sidener was
this
opinion
court.
by
subsequently approved
Tenorio,
v.
95;
3
at
Cal.3d
see also
v.
(People
Navarro
supra,
p.
People
7
(1972)
Cal.3d
259
497 P.2d
v.
481];
Cal.Rptr.
People
[102
Clay
213].)5
Cal.App.3d
Cal.Rptr.
[96
(151
conviction in that case.
at
dis.
That assertion is
Cal.Rptr.
p.
opn.].)
[former
At no time
mistaken.
has Penal Code section 1203 dealt with —or even mentioned —a
court’s
strike a
enhancement factor.
penalty
The court in
did not
Cortez
refer
section 1203 for the reason
to it
ascribed
Rather,
dissent.
it mentioned that section
its
of “the
during
examination
purposes
*57
(Ibid.)
a motion to strike
underlying
convictions.”
The court relied on section 1203
prior
stricken,
to
that if
show
conviction were
solely
then the statute which otherwise
prior
Code,
(i.e..
11715.6)
prohibited probation
Cortez' case
Health & Saf.
§
no longer
would
to him and he would be
apply
for
within the terms of section
eligible
probation
1203. This court did not even
that section 1203 itself authorized
remotely suggest
of the enhancement.
striking
5 I do not understand the dissent
Justice Clark to
that
by
contend
the adjudication
to a
as
process
enhancement
factor is
penalty
when a
complete
defendant has
simply
admitted the enhancement or a
or a
has found it to
true.
judge
be
Such a contention
jury
would,
course,
Burke,
(See
be meritless.
v.
47
generally,
Cal.2d at
People
supra,
pp.
51
the court’s
to
[discussing
strike
dismiss a
power
conviction
prior
“regardless
whether
prior
has or has not been admitted or
evidence”];
established by
[the
conviction]
Sidener,
Schauer,
(dis.
J.)
v.
supra,
Since a court’s part adjudication ruling Burke, Cortez, that the Ruiz the conclusion and compel process, reserved factor in this case enhancement strike the exclusively penalty Burke, Ruiz is not Cortez and Continued adherence to the judiciary. Rather, it is a prerogative. Legislature’s usurpation judicial function from of the legislative usurpa- constitutional protection judicial a traditional tion. These cases protection represent simply arbiters in functions as neutral reserved constitutionally judiciary’s sentencing process. understood its trial court case the
In the correctly present to strike the enhancement whether penalty determining responsibility Burke, this court overrules Unless constitutional dimension. was of III, Cortez, Ruiz, 3 of the section state rewrites article Constitution, must the trial court be decision of upheld. *58 (see, (1977) true v. Prater or has been found 627]) e.g., People judge jury Cal.Rptr. Dorsey 566]; v. 28 Cal.App.3d 700-703 People Cal.Rptr. 71 Cal.App.3d [139 326]). Cal.Rptr.
[104