Orange
County Super. Ct. No. 13NF0928 Ct.App. 4/3 G048563 Nicholas
S. Thompson Judge
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COUNSEL
Kamala
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Holly D. Wilkens, Steven T. Oetting, Lise
Jacobson and Kristen Kinnaird Chenelia, Deputy Attorneys
General; 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
CHIN,
J.
The
issue presented here is whether a trial court has the
discretion under Penal Code[1] section 1385, subdivision
(a) (section 1385(a)) to
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dismiss a sentencing enhancement allegation for a
gang-related offense (§186.22, subd. (b)(1) (section
186.22(b)(1))), or if the court is limited to its authority
under section 186.22, subdivision (g) (section 186.22(g)),
which provides that “[n]otwithstanding any other law,
the court may strike the additional punishment for the
enhancements provided in this section.” In other words,
by enacting section 186.22(g), did the Legislature eliminate
a trial court’s section 1385(a) discretion to dismiss
or strike entirely a section 186.22(b)(1) gang enhancement?
For
reasons that follow, we conclude that a trial court has the
discretion to strike the gang enhancement altogether under
section 1385(a).
Factual
and Procedural Background
In
March 2013, the Orange County District Attorney (District
Attorney) charged defendant Alexis Alejandro Fuentes with the
unlawful taking of a vehicle (Veh. Code, § 10851, subd.
(a)), and receiving stolen property (Pen. Code, § 496d,
subd. (a)). The two-count felony complaint also alleged as an
enhancement that defendant committed the charged offenses
“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.” (See § 186.22, subd. (b).)
This gang enhancement allegation exposed defendant to up to
an additional four years in prison. (Ibid.)
On May
2, 2013, after an off-the-record conference in chambers, the
trial court indicated the following: if defendant pleaded
guilty to counts 1 and 2, the court would dismiss the gang
enhancement allegation (§ 186.22(b)(1)), pursuant to its
discretion under section 1385(a). The prosecutor, however,
objected to the indicated sentence, arguing that the court
lacked discretion to dismiss the enhancement and that its
authority was limited to striking the additional punishment
under section 186.22(g). Defendant moved to dismiss the gang
enhancement allegation under section 1385(a).
As part
of the agreement in which defendant pleaded guilty to the
charges, he offered the following statements as a basis for
his 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
accepted the defense invitation to dismiss the gang
enhancement allegation under section 1385(a). The court
orally stated its reasons for dismissing the enhancement
allegation; however, those reasons are not reflected in the
court minutes. The trial court pronounced judgment and placed
defendant on three years’ probation with additional
terms and conditions.
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The
District Attorney appealed. He argued that the phrase
“[n]otwithstanding any other law” in section
186.22(g) shows the Legislature intended that section to
replace or supplant the court’s general authority under
section 1385(a) to strike or dismiss gang allegations. For
that reason, the trial court had the authority to strike the
additional punishment for the enhancement, but not the
enhancement itself. Disagreeing with a decision from a
different division within its district (People v.
Campos (2011) 196 Cal.App.4th 438 [126 Cal.Rptr.3d
274]), the Court of Appeal here stated that the
“[n]otwithstanding any other law” phrase supports
the District Attorney’s interpretation only if section
186.22(g) is “contrary to, in conflict with, or
inconsistent” with section 1385(a). It concluded
section 186.22(g) was not. Therefore, under section 1385(a),
the trial court had the discretion to dismiss the gang
enhancement allegation altogether, and it was not limited to
striking the additional punishment for the enhancement under
section 186.22(g).
Because
the trial court failed to state its “reasons for the
dismissal... in an order entered upon the minutes, ” as
section 1385(a) mandated at the time (see Stats. 2000, ch.
689, § 3, p. 4558), the Court of Appeal remanded the
case to the trial court to allow it to do so. (See People
v. Bonnetta (2009) 46 Cal.4th 143, 151 [92 Cal.Rptr.3d
370, 205 P.3d 279] [§ 1385’s “mandatory
...