On appeal, defendant claims the trial court was unaware of its discretion to substitute, for the section 12022.53, subdivision (d) enhancement, a different enhancement within the same section ( § 12022.53, subds. (b) or (c) ).
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of April 10, 2016, Brian P.
The Kern County District Attorney's Office filed an information charging defendant as follows: count 1 - willful, deliberate, and premeditated attempted murder
Prior to sentencing, defendant filed a motion to strike the punishment for the section 12022.53, subdivision (d) enhancement in the interest of justice pursuant to section 1385. In the motion, defendant argued the court should consider his age, history of employment, limited criminal history, the testimony of several character witnesses, the spontaneous nature of the shooting, and the fact that he was under the influence оf alcohol at the time of the offenses. Defendant also noted the court "could still impose a sentence of well over 10 years" based on the remaining charges and enhancements. After hearing argument, the court denied the motion, reasoning the egregiоusness of defendant's conduct - which it characterized as the shooting of a good Samaritan in his lower back, who defendant did not know, "at point blank," to effectuate a beer run - did not warrant striking or dismissing the enhancement. The court continued, "... I think the whole thought behind the 12022.53( [d] ) is that whеn you have a felony, serious felony, a robbery such as that is being committed and someone essentially is armed and inflicts bodily injury, there needs to be a serious punishment for that." The court sentenced defendant on count 2, robbery, to three years in state prison. For the sеction 12022.53, subdivision (d) enhancement, the court imposed an additional 25 years to life.
DISCUSSION
Defendant contends the trial court committed an abuse of discretion because it was unaware that pursuant to sections 1385 and 12022.53, subdivision (h) it could have substituted the section 12022.53, subdivision (d) enhancement with a different
The denial of a motion to dismiss pursuant to section 1385 is reviewed for abuse of discretion, and "an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss." ( People v. Carmony (2004)
Defendant's claim is predicated on his interpretation of the cоurt's power pursuant to sections 1385 and 12022.53, subdivision (h). Since defendant raises a question of statutory interpretation, our standard of review is de novo. ( John v. Superior Court (2016)
" 'When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature. [Citation.] If the language is unаmbiguous, the plain meaning controls.' [Citation.] '[W]henever possible, significance must be given to every word [in a statute] in pursuing the legislative purpose[.]' " ( People v. Rodriguez (2012)
The reference to section 1385 in section 12022.53, subdivision (h) is also significant. As our high court has notеd: "there is a long history of dispute among the various branches of state government over the application of section 1385 to sentencing allegations.... The lesson of section 1385's controversial history is that references to the section in sentencing statutes are not lightly or thoughtlessly made." ( People v. Superior Court (Romero)
This conclusion becomes even more apparent when we examine statutes that expressly authorize courts to modify a charge or an enhancement. " 'Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent.' " ( City of Emeryville v. Cohen (2015)
"[I]f the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court mаy modify the verdict, finding or judgment accordingly without granting or ordering a new trial[.]" (Ibid. )
Similarly, section 1260 gives appellate courts the power to "modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense." Had the Legislature intended to grant the trial court the power to modify or reduce a firearm enhancement, it would have done so with express language. Sections 1385 and 12022.53, subdivision (h) contain no such language.
In the instant case, the prosecution could have alleged all three section 12022.53 enhancements, and if it had done so, the jury would presumably have found all three true. In that circumstance, the court would have had the discretion to strikе the section 12022.53, subdivision (d) enhancement and then either impose one of the other two enhancements or strike them as well. However, because the People exercised their charging discretion to allege only one enhancement, the trial court was limited to either imposing or striking that enhancement.
We recognize the trial court has the authority to impose a " ' "lesser included enhancement[ ]" ' " following trial "when the charged enhancement is either factually unsupported or inapplicable to the offеnse of conviction." ( People v. Fialho (2014)
We are aware our opinion reaches a holding contrary to that of People v. Morrison (2019)
The trial court understood its discretion under sections 1385 and 12022.53, subdivision (h). As such, it did not err.
The judgment is affirmed.
WE CONCUR:
SMITH, J.
DE SANTOS, J.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
For the sake of privacy, we refer to Brian by his first namе. No disrespect is intended.
The bullet fractured Brian's right hip. For the subsequent month, he required the use of a walker. He continues to suffer from great pain when he walks, as well as loss of movement in his foot.
On count 6, assault with a semiautomatic firearm, the court imposed a cоncurrent term of six years in state prison enhanced by four years pursuant to section 12022.5, subdivision (a) and three years pursuant to section 12022.7, subdivision (a). On count 5, driving under the influence, the court imposed a concurrent term of 90 days in the Kern County jail.
On appeal, defendant argues, specifically, the court "had the discretion to strike portions of the firearm enhancement." If the court had stricken "a portion of [the firearm enhancement] finding," his argument goes, it could have imposed a sentence of less than 25 years to life. Defendant did nоt raise this issue in the trial court. Because we reject defendant's claim of error on the merits, we do not address the People's forfeiture argument.
Additionally, defendant mentions the trial court's failure to "strike portions of the firearm enhancement" violated the federal and state constitutional due process clauses. Other than that bare mention in the caption to this issue raised in his briefing, however, defendant does not expand on his due process claim. We thus decline to consider it further. (People v. Wharton (1991)
Former section 12022.53, subdivision (h) stated: "Notwithstanding [s]ection 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Stats. 2010, ch. 711, § 5.)