People v. Tanner , 24 Cal. 3d 514 ( 1979 )

Opinion

CLARK, J.

— People appeal from order striking jury finding that defendant used a firearm during the commission of robbery. The order disregards mandatory language of Penal Code section 1203.06.¹ We conclude the trial court erred.

This appeal involves a single issue: Did the Legislature in enacting section 1203.06 intend its mandatory language be subject to preexisting statutory language providing that a “court may . . . of its own motion . . . and in furtherance of justice, order an action to be dismissed”?² (§ 1385.) Section 1385 has been construed to provide judicial power to dismiss or strike — within the court’s discretion — allegations which, if proven, would enhance punishment for alleged criminal conduct. (See People v. Burke (1956) 47 Cal.2d 45, 50-51 [301 P.2d 241].) This case arises because the Legislature in enacting section 1203.06 did not expressly state whether the mandatory provision of section 1203.06 would be subject to judicial discretion pursuant to section 1385.

The facts of this case lend themselves to discretionary action by the trial court — if the court possessed the power of such discretion. Defendant, having no prior criminal record, entered and robbed a retail store clerk of $40, using an unloaded handgun. Leaving, he instructed the clerk to sound an alarm and to notify police. Half an hour later, defendant was arrested in the vicinity of the store. At trial he explained he had committed the crime in an attempt to persuade the store owner to renew recently discontinued security services provided by defendant’s employer. However, substantial evidence supports jury findings that defendant possessed requisite criminal intent to commit the crime and to use the firearm.

Because probation is a statutory creation (see Cal. Const., art. IV, § 1; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420]; People v. Sidener (1962) 58 Cal.2d 645, 653 [25 Cal.Rptr. 697, 375 P.2d 641]; In re Haines (1925) 195 Cal. 605, 622 [234 P. 883]; People v. Hess (1951) 104 Cal.App.2d 642, 685-686 [234 P.2d 45]), the issue confronting us is one of statutory purpose.³ While the Legislature has not assisted us in discerning its intent, we must conclude that when proper findings invoking the operation of section 1203.06 have been made, the mandatory provisions of that section may not be avoided by employing section 1385 to strike either the allegations of the complaint or the findings of the jury.

History discloses a continuing legislative interest in limiting the privilege of probation for persons using firearms in committing serious crimes. Between 1923 and 1957 probation was unavailable to defendants using deadly weapons in specified crimes. (Stats. 1923, ch. 144, § 1, p. 291; Stats. 1927, ch. 770, § 1, p. 1493; Stats. 1931, ch. 786, § 1, p. 1633.) Between 1957 and 1975 the Legislature made certain exceptions to the unavailability of probation, allowing trial courts limited discretion. (Stats. 1957, ch. 2054, § 1, pp. 3649-3650; Stats. 1965, ch. 1720, § 1, pp. 3867-3870; see also, People v. Clay (1971) 18 Cal.App.3d 964 [96 Cal.Rptr. 213].) However, in 1975 the Legislature further limited trial court discretion to cases not falling within section 1203.06. (See Stats. 1975, ch. 1004, §§ 1, 2.) After the 1975 enactment, section 1203 operated to deny probation following particular criminal conduct “[e]xcept in unusual cases where the interests of justice would best be served.” (§ 1203, subd. (d).) The section 1203.06 prohibition against granting probation, however, goes even beyond that of section 1203, denying probation to criminals convicted of enumerated crimes, providing for no exception in the interest of justice or otherwise.

We must therefore conclude the Legislature intends discretion may be exercised in the case of crimes falling within section 1203 but not within section 1203.06. Any other construction restores the pre-1975 law allowing a court to grant probation to any criminal if the court deems that to do so would be in the interest of justice. Such judicial resurrection renders the 1975 legislation a nullity. (See People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 132 [74 Cal.Rptr. 294, 449 P.2d 230].)⁴

Our conclusion is supported by pertinent and timely expression of legislative intent existing when section 1203.06 was enacted. The Legislative Counsel’s summary of the 1975 enactment states that trial court discretion to grant probation in unusual cases is eliminated so that “probation and suspension of sentence would be denied, without any exception in unusual cases in the interests of justice, to any person who uses a firearm during the commission of various felonies, including . . . robbery . . . .” (Leg. Counsel’s Dig. of Sen. Bill No. 278, 1 Stats. 1975 (Reg. Sess.) Summary Dig., ch. 1004, p. 262; italics added.) This statement is consistent with a staff memorandum prepared by the Senate Committee on the Judiciary stating that Senate Bill No. 278 (in which the 1975 amendments to §§ 1203 and 1203.06 were introduced), “Prohibits, without exception, the granting of probation to persons who have carried or used firearms in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice.” (Italics added.) Finally, there exists the executive statement of Governor Brown issued by press release in which he explained the effects of the legislation. He stated: “By signing this bill, I want to send a clear message to every person in this state that using a gun in the commission of a serious crime means a stiff prison sentence. Whatever the circumstances, however eloquent the lawyer, judges will no longer have discretion to grant probation even to first offenders. ” (Governor’s Press Release No. 284 (Sept. 23, 1975), italics added.)

Finally, whereas section 1385 is general in nature, relating to the broad scope of dismissal, section 1203.06 is specific, relating to the limited power of dismissal for purposes of probation — the very matter at issue. Section 1203.06 is the later enactment, adopted by the Legislature in response to the particular problem at hand. A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].)

Because we conclude section 1385 is inapplicable when proper findings have been made invoking section 1203.06, it follows that the trial court erred in striking the use finding and sending defendant to county jail rather than to prison. (Cf. Stats. 1977, ch. 165, § 22.)

However, given the unusual postconviction manner in which the issue of judicial discretion has been presented and finally resolved, it follows Mr. Tanner should not necessarily be committed to prison. The uncertainty arising from the rule of law resulting in the trial court’s erroneous disposition, has created both an unusual burden on defendant and a dilemma for this court. Simply put, is it not unfair to require Mr. Tanner to now serve a second term for his criminal act?

While pertinent Penal Code provisions fairly warned Mr. Tanner of the penalty mandated for using a gun in the commission of robbery, we are concerned with the judicial ambivalence preceding final disposition of his case. In a highly similar case the United States Court of Appeals held that defendants, while receiving unauthorized probation for their crimes, should nevertheless not be resentenced to required life imprisonment or death because resentencing would “work a substantial hardship on the Defendants.” (United States v. Denson (5th Cir. 1979) 588 F.2d 1112, 1132.) The court stated, among other things: “These Defendants have been told after such prosecutions and investigations that they would be subjected to one year’s incarceration to be followed by five years supervision. They prepared to surrender for such incarceration. They have adjusted their lives to the punishment assessed. They have sought and secured employment opportunities consistent with the term of incarceration imposed. To. withdraw the probation granted for which the Defendants and their families have prepared themselves would work a substantial hardship on the Defendants and their families.” (Id., at p. 1132.) The substantial hardship was deemed to exist even though defendants in Denson had not yet served the one-year incarceration imposed for a concurrent crime.

Mr. Tanner having complied with his conditions of probation — including one year’s stay in county jail — we determine a second incarceration would be unjust.

The judgment is affirmed.

Mosk, J., Richardson, J., and Manuel, J., concurred.

1 Section 1203.06 provides in pertinent part: “Notwithstanding the provisions of section 1203: (a) Probation shall not be granted to . . .: (1) [a]ny person who used a firearm during the commission ... of any of the following crimes: (iii) Robbery, in violation of Section 211. . . .” (Italics added.)

After the use-finding was stricken sentencing was suspended and defendant was admitted to probation for a period of five years on condition, among others, that he serve one year in the county jail, beginning 9 July 1976.

Unless otherwise specified, all statutory references herein are to sections of the Penal Code.

2 The People’s notice of appeal purports to challenge striking the use-finding not only as to section 1203.06 but also as to section 12022.5. That section would increase the term of imprisonment for using a firearm in the commission of particular crimes. However, the People have not briefed,the issue as to section 12022.5, their argument being confined to section 1203.06 issues. We deem the People to have abandoned section 12022.5 issues.

3 We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment. “[Sjubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.” (Keeler v. Superior Court, supra, 2 Cal.3d 619, 631.) “[TJhe legislative branch of the government has the power to declare that in certain . . . cases, probation may not be granted. The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government. It does not impair, restrict nor enlarge upon the jurisdiction of the courts. The function of the courts is to determine the guilt or innocence of an accused. What disposition may thereafter be made by way of penalty is for the Legislature to determine.” (People v. Hess, supra, 104 Cal.App.2d 642, 685-686; see also, Stephens v. Toomey (1959) 51 Cal.2d 864, 869-870 [338 P.2d 182]; People v. Knowles (1950) 35 Cal.2d 175, 181 [217 P.2d 1]; People v. Perry (1964) 230 Cal.App.2d 258, 262-263 [40 Cal.Rptr. 829]; People v. Orrante (1962) 201 Cal.App.2d 553, 559-566 [20 Cal.Rptr. 480].)

In the instant case the trial court — in rejecting the People’s contention that section 1203.06 precluded striking the use-finding — stated that if section 1203.06 were to be so construed it would constitute an unconstitutional invasion of the judicial sentencing function. The court erred in so concluding, leading to its further error in striking the use-finding.

4 Illustrative of legislative intent, even as understood by opponents of the enactment, is the following excerpt from an 18 September 1975 letter from the American Civil Liberties Union addressed to the Governor: “The Legislature in enacting such legislation is presuming omniscience predicting that in no case will probation, even conditioned on jail time, ever be an acceptable alternative.”