Ct.App. 1/2 A115732 (Contra Costa County ) Super. Ct. No. 050516658. Theresa J. Canepa.
The opinion of the court was delivered by: Werdegar, J.
Penal Code section 1385, subdivision (a) provides in relevant part: "The judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."*fn1 The discretion thereby conferred on the trial courts includes the discretion to dismiss or strike an enhancement in the furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504; People v. Thomas (1992) 4 Cal.4th 206, 209.) But whether the decision is to dismiss the entire action or, as here, only an enhancement allegation, Penal Code section 1385 requires that the reasons for the dismissal be set forth "in an order entered upon the minutes." (Id., subd. (a).) Here they were not.
A century of judicial decision, looking to the Legislature's intent in enacting Penal Code section 1385, has construed its provisions to be "mandatory," so that an order of dismissal is ineffective in the absence of a written statement of reasons entered upon the minutes. Despite the multitude of decisions adopting this construction, defendants contend section 1385 actually means something else. They invite us to adopt an interpretation that will preserve an order of dismissal entered without a written statement of reasons entered upon the minutes if the appellate court is able to discern the trial court's reasoning from some other portion of the record. Defendants' construction has some appeal, particularly where, as here, the trial court's reasons unambiguously appear in the transcript of the oral proceedings. Nonetheless, that the settled meaning of section 1385 in some instances renders compliance with its mandate inefficient does not justify the conclusion that the Legislature that enacted it intended something different, particularly when valid reasons existed and continue to exist for the long-standing interpretation. We also reject defendants' argument that the district attorney waived the error by failing to inspect the written record after the hearing to ensure that the trial court had complied with section 1385's requirements.
We therefore affirm the judgment of the Court of Appeal reversing the orders of dismissal. However, because the Court of Appeal made no further order, defendants currently stand convicted of all charges and enhancements, a result at odds with both the trial court's evident intent and defendants' understanding that their admission of guilt would lead to dismissal of the enhancements. We therefore remand the matter to the Court of Appeal with directions to allow the trial court either to correct the error by again ordering dismissal, setting forth its reasons in an order entered upon the minutes, or to reconsider its decision and take appropriate action including, if necessary, proceeding as if the order had not been entered in the first instance.
On July 8, 2004, defendant Thomas Bonnetta was a passenger in a car stopped by a deputy sheriff. Behind Bonnetta's seat, the deputy found two cans of lye, a substance used in manufacturing methamphetamine. After learning Bonnetta was on parole, the deputy conducted a parole search of a residence Bonnetta shared with defendant Michael Claude Wilen. That search and a later one conducted pursuant to a warrant led to the discovery of materials, equipment, and documents suggesting defendants were involved in an ongoing operation for the manufacture and sale of methamphetamine. One of the items seized was a five-gallon jug filled with a bilayered liquid that when tested indicated the presence of methamphetamine. Bonnetta told investigating officers he was "pulling pills," a reference to the act of "pulling" pseudoephedrine from cold medication.
Bonnetta and Wilen were jointly charged with manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing components to manufacture methamphetamine (id., § 11383, former subd. (c)(1)), possessing specified chemicals with the intent to manufacture methamphetamine (id., § 11383, former subd. (g)), and possessing methamphetamine for sale (id., § 11378). Wilen was charged additionally with separate counts of possessing components to manufacture methamphetamine and possessing laboratory glassware or apparatus with an intent to manufacture methamphetamine (id., §§ 11383, former subd. (g), 11104.5).
The information also included numerous allegations that, if found true, would support or require enhancements to any terms of imprisonment imposed upon judgments convicting defendants of the charged offenses. It was alleged the substance defendants used in manufacturing methamphetamine exceeded three gallons of liquid by volume or one pound of solid substances by weight, an allegation that if true supports a three-year enhancement under Health and Safety Code section 11379.8, subdivision (a)(1). It was alleged Bonnetta had suffered a number of prior drug-related convictions, each supporting a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c). It was alleged that two of those convictions, and an additional conviction for being a felon in possession of a firearm, were felonies for which Bonnetta had served a term in prison so that one-year enhancements for each conviction were required by Penal Code section 667.5, subdivision (b). And it was alleged Wilen had suffered one prior drug-related felony conviction supporting Health and Safety Code section 11370.2's three-year enhancement and had suffered seven prior convictions for purposes of one-year enhancements required by Penal Code section 667.5, subdivision (b).
All told, Bonnetta faced a maximum sentence of 29 years and Wilen a maximum sentence of 22 years in state prison. The trial court indicated that if each defendant would enter a plea of guilty to all charges and admit all the enhancements, it would sentence Bonnetta to no more than eight years' imprisonment and Wilen to no more than six years eight months' imprisonment. Defendants were willing, but the prosecutor objected, asserting the court could arrive at the proposed sentences only by striking most of the enhancements, which in the prosecutor's opinion would be an abuse of discretion. Despite the prosecutor's objections, the court accepted defendants' pleas and sentenced them as indicated.
As the prosecutor had foreseen, the court reached the agreed-upon terms by striking most of the enhancements. The court struck the allegations concerning the quantity of the substance in the jug found at defendants' residence, stating that after reviewing the preliminary hearing testimony it could not find beyond a reasonable doubt the prosecutor would be able to prove the jug contained more than three gallons of liquid by volume or one pound of solid substance by weight. The court imposed a three-year term for a drug-related conviction suffered by Bonnetta in 2000, but struck all of Bonnetta's other drug-related enhancements, explaining they were old and remote or that it was striking them in the interest of justice, to achieve parity in sentencing, and to facilitate the speedy resolution of the matter. The court imposed a one-year term for one of Wilen's prior convictions, but struck all the other allegations of prior convictions, explaining they were remote. The court's decision was reduced to an order entered upon the minutes, but the written order did not set forth any of the court's reasons for striking the enhancements.
The People appealed, contending the trial court had abused its discretion by striking the enhancements and that the orders were ineffective because the court had not set forth its reasons for the dismissals in an order entered upon the minutes. The Court of Appeal agreed and reversed the orders striking the additional terms of imprisonment required or authorized by the enhancement allegations.
Penal Code sections 1385 and 1386, enacted in 1872, codify California's rejection of the English rule of nolle prosequi, under which the prosecutor alone had authority to discontinue a prosecution,in favor of granting sole authority to the courts to dismiss actions in furtherance of justice.*fn2 (See People v. Tenorio (1970) 3 Cal.3d 89, 92-93.) "The court, for the purposes of the order of dismissal, takes charge of the prosecution, and acts for the people. It holds the power to dismiss, as the attorney-general in England holds the power to enter a nolle prosequi, by virtue of the office and the law; and it is exercised upon official responsibility." (People v. More (1887) 71 Cal. 546, 547.) But in granting authority to a court to dismiss "in furtherance of justice," the Legislature "required the court to spread upon the minutes for public reference the reason for its action in dismissing a felony prosecution." (People v. Romero (1936) 13 Cal.App.2d 667, 670.) "From the standpoint of the public welfare, potent arguments suggest themselves as to the wisdom of such a requirement. Indeed, the legislature has gone so far as to guard against the likelihood of the court doing violence to the interest of justice by providing that such order can be made only 'in the furtherance of ...