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People v. Fuentes

California Court of Appeals, Fourth District, Third Division

April 30, 2014

THE PEOPLE, Plaintiff and Appellant,
v.
ALEXIS ALEJANDRO FUENTES, Defendant and Respondent.

[REVIEW GRANTED BY CAL. SUPREME COURT]

Appeal from an order of the Superior Court of Orange County No. 13NF0928, Nicholas S. Thompson, Judge.

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COUNSEL

Tony Rackauckas, District Attorney, and David R. Gallivan, Deputy District Attorney, for Plaintiff and Appellant.

Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Miles David Jessup, Deputy Public Defender, for Defendant and Respondent.

OPINION

FYBEL, J.

Introduction

The trial court dismissed an enhancement alleged under Penal Code section 186.22, subdivision (b)[1] (section 186.22(b)) against defendant Alexis Alejandro Fuentes. The court ordered the enhancement dismissed pursuant to section 1385, subdivision (a) (section 1385(a)), which grants a trial court power to dismiss or strike an action, including specific charges and enhancement allegations. The Orange County District Attorney (the District Attorney) challenges the order dismissing the enhancement on the ground that under section 186.22, subdivision (g) (section 186.22(g)), the trial court had the power only to strike the additional punishment for the enhancement.

Section 186.22(g) gives the trial court the power, “[n]otwithstanding any other law, ” to strike the additional punishment for an enhancement alleged under section 186.22(b). The issue presented by this case is whether, by enacting section 186.22(g), the Legislature eliminated the trial court’s power under section 1385(a) to dismiss or strike an enhancement alleged under section 186.22(b).

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We conclude the enactment of section 186.22(g) did not eliminate the trial court’s power to dismiss or strike an enhancement alleged under section 186.22(b). The phrase “[n]otwithstanding any other law” in section 186.22(g) means that section governs over all conflicting, contrary, or inconsistent law. The power to dismiss or strike an enhancement alleged under section 186.22(b) is not in conflict with, contrary to, or inconsistent with the power to strike the additional punishment under section 186.22(g). An enhancement allegation is different from the additional punishment imposed when the allegation is found to be true. Thus, the phrase “[n]otwithstanding any other law” in section 186.22(g) does not constitute a clear direction that the Legislature intended to eliminate a trial court’s power under section 1385(a) to dismiss or strike an enhancement alleged pursuant to section 186.22(b).

The trial court did not, however, state its reasons for dismissing the enhancement allegation in an order entered in the minutes, as required by section 1385(a). We therefore remand to permit the trial court to comply with section 1385(a). In all other respects, the order is affirmed.

Background

By complaint filed in March 2013, the District Attorney charged Fuentes with one count (count 1) of unlawful taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a), and one count (count 2) of receiving stolen property in violation of Penal Code section 496d, subdivision (a). The complaint alleged as an enhancement pursuant to section 186.22(b) that Fuentes committed the offenses charged in counts 1 and 2 “for the benefit of, at the direction of, and in association with... a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by members of that gang.”

As part of an agreement, Fuentes pleaded guilty to counts 1 and 2. He offered the following as the factual basis for the plea: “[O]n 3-14-13 I willfully took a car with the intent to deprive the owner of it and without consent of the owner. I was also in possession of such vehicle.”

Over the District Attorney’s objection, the trial court granted a defense motion to dismiss, pursuant to section 1385(a), the enhancement alleged under section 186.22(b). The court orally stated its reasons for dismissing the enhancement allegation; however, those reasons do not appear in the court minutes. Fuentes moved to withdraw his not guilty plea to counts 1 and 2 and pleaded guilty. The court pronounced judgment and placed Fuentes on three years of formal probation with terms and conditions.

The District Attorney timely appealed from the dismissal of the enhancement alleged under section 186.22(b). The order dismissing the enhancement is appealable ...


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