Opinion
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Santa Cruz County, No. 93-00609, Robert B. Atack, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Judge of the Municipal Court for the Santa Cruz Judicial District sitting under assignment by the Chairperson of the Judicial Council.
William M. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Christopher W. Grove and Stan M. Helfman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WUNDERLICH, J.
Statement of the Case
In case No. H012762, defendant Louis Ledesma appeals from a judgment entered after a jury found him guilty of numerous felonies, including robbery, first and second degree burglary, receiving stolen property, vehicle theft, possession of a sawed-off shotgun, and possession of a firearm by an ex-felon. The jury also found true an enhancement allegation that he used a firearm in connection with a robbery count. Thereafter, the court found true prior felony conviction and prison term enhancement allegations.
In case No. H013188, defendant appeals from a judgment entered after the jury found him guilty of several more felonies, including robbery, attempted robbery, assault with a firearm, and discharging a firearm with gross negligence. The jury also found true enhancement allegations that he personally used a firearm in connection with each count.
By written order of December 1, 1994, we granted limited consolidation of the appeals for the purposes of briefing, oral argument, and decision.
In these appeals, defendant contends there is insufficient evidence to support a finding that he has the ability to pay $1,600 in restitution and fines imposed by the court. He also claims the court abused its discretion in failing to state reasons for imposing a firearm-use enhancement on his conviction for assault with a firearm. Finally, he claims the personal firearm-use enhancement on his conviction for discharging a firearm must be reversed because use of a firearm is an element of the offense. We agree with defendant's final claim, modify the judgment to strike this enhancement, and affirm the judgment as modified.
Given the nature of defendant's contentions, the facts of the offenses are irrelevant and, therefore, we need not summarize them.
I. Ability to Pay Restitution
Defendant claims there is insufficient evidence he has the ability to pay the $1,600 in restitution and fines ordered by the trial court. We disagree.
The probation report indicates that defendant has not been employed for the previous five years, except while incarcerated, and has no income, source of funds, or assets. It does not, however, indicate that he has any mental and physical condition that render him incapacitated or unable to work. Indeed, his criminal activity suggests otherwise.
Former Government Code section 13967, subdivision (a), (see stats.1992, ch. 682, § 4, pp. 2557-2558; stats.1994, ch. 1106, § 2, p. 5448) , which was in effect when defendant *800 was first sentenced on June 3, 1994, implicitly requires a finding that a defendant is presently able to pay the restitution or will have the future capacity to pay such a fine. (See People v. Frye (1994) 21 Cal.App.4th 1483, 1486-1487, 27 Cal.Rptr.2d 52.) The statute does not require an express finding. Therefore, we presume the trial court properly exercised its statutory duty and made the required finding. (Cf. People v. Staley (1992) 10 Cal.App.4th 782, 785-786, 12 Cal.Rptr.2d 816; People v. Mack (1986) 178 Cal.App.3d 1026, 1032, 224 Cal.Rptr. 208.) The only question before us is whether the trial court's implied finding that defendant will have the future capacity to pay $1,600 while in prison is supported by substantial evidence.
, subdivision (a), provided, in relevant part, that "if the person is convicted of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than two hundred dollars ($200), subject to the defendant's ability to pay, and not more than ten thousand dollars ($10,000)." (See Stats. 1992, ch. 682, section 4.) Former Government Code section 13967
In People v. Frye, supra, 21 Cal.App.4th 1483, the trial court imposed a $200 restitution fine, finding it could be paid from prison wages. (Id. at p. 1487.) On appeal, the court noted that "State prison inmates who perform assigned work are compensated for it." (Ibid.) The court reasoned that since defendant did not object or present evidence he was disabled or otherwise ineligible for prison employment, "the trial court could presume the fine would be paid out of defendant's prison wages." (Ibid.)
Penal Code section 2700 provides, in relevant part, "The Department of Corrections shall require of every able-bodied prisoner imprisoned in any state prison as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections." This section also requires that prisoners who perform assigned work be compensated.
In People v. Gentry (1994) 28 Cal.App.4th 1374 [34 Cal.Rptr.2d 37], the court concluded that defendant's failure to object waived any claim concerning the propriety of a $5,000 restitution fine. (Id. at p. 1376.) In dicta, the court reasoned that even though the Department of Corrections's procedure is to deduct 20 percent of a prisoner's wages to pay restitution fines, "... it does not follow that the [trial] court cannot consider the remaining 80 percent in making an ability to pay determination." (Id. at p. 1377.) Using a top figure of $75 per month in wages, the court calculated the defendant could satisfy the $5,000 fine in less than six years. (Ibid.)
Given Frye and Gentry, the trial court reasonably could find that defendant would have the capacity to pay the $1,600 from prison earnings. Under Penal Code section 2700, the Director of Corrections is directed to require prison inmates to perform work for which they will be compensated. Since defendant was sentenced to prison, the trial court reasonably could find that defendant will be required to work and will be compensated therefor. Moreover, given the Gentry court's method of calculation and defendant's 36-year sentence, the trial court reasonably could find that he would earn far more than $1,600.
Even if defendant served only half of his term, i.e., 18 years, and earned only $50 per month, he would, under the Gentry court's calculation, still earn $5,400. We observe that according to this more conservative calculation, defendant would retain more of his earnings after making restitution than would the defendant in Gentry.
On appeal, defendant points to no evidence that might rebut the trial court's implied findings, that is, he did not show that he has a disability that would prevent him from working in prison.
II. Statement of Reasons for Use Enhancement
Defendant contends the court erred in failing to state reasons for imposing the midterm firearm-use enhancement on his conviction for assault with a firearm. He notes that under Penal Code section 12022.5, subdivision (d), an enhancement "may be imposed in cases of assault with a firearm ...." (Italics added.) He argues that the word "may" makes the enhancement discretionary and thus requires the court to state reasons for imposing it.
Penal Code section 12022.5, subdivision (a) provides, in relevant part, "Except as provided in subdivisions (b) and (c), any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted." (Italics added.) As noted above, subdivision (d) expressly authorizes imposition of the enhancement when the underlying offense is, among others, assault with a firearm.
There is a conflict of authority on the issue. In People v. Hill (1989) 207 Cal.App.3d 1574, 1579 [255 Cal.Rptr. 772], the court rejected defendant's claim. It noted that under section 1170, subdivision (a) (3), "[t]he court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term which it is required by law to impose as an additional term." (Italics added.) To understand the emphasized language, the court referred to section 1170.1, subdivision (d), which provides, in relevant part, "[w]hen the court imposes a prison sentence for a felony pursuant to Section 1170, the court shall also impose the additional terms provided in ... Section[] ... 12022.5 ... unless the additional punishment therefor is stricken pursuant to subdivision (h)...." (Italics added.) The court observed that under (now former) section 1170.1, subdivision (h), a sentencing court could strike a section 12022.5 enhancement if it stated mitigating circumstances on the record. The court concluded that when read together section 1170.1, subdivisions (d) and (h), make "imposition of the enhancement ... the general rule for which no reason need be stated, but the striking of the enhancement, being the exception, requires a statement of reasons be given." (People v. Hill, supra, 207 Cal.App.3d at p. 1578.)
The Hill court also cited the extensive review of the legislative history of sections 245 and 12022.5 in People v. Martinez (1987) 194 Cal.App.3d 15, 19-23, 239 Cal.Rptr. 272 and explained that notwithstanding the word "may," the legislative intent behind subdivision (d) was not to make imposition of the enhancement a discretionary sentencing choice that required a statement of reasons. Rather, subdivision (d) was intended only to create an "exception" to, i.e., limit the scope of, the language in subdivision (a) prohibiting the imposition of an enhancement where use of a firearm is an element of the offense. (People v. Hill, supra, 207 Cal.App.3d at pp. 1578-1579, 255 Cal.Rptr. 772.)
When Hill was decided, the language of subdivision (d) was found in subdivision (c). (See Stats. 1987, ch. 1159, section 1, p. 4088.)
In People v. Vacca (1995) 38 Cal.App.4th 804 [45 Cal.Rptr.2d 483] and People v. Campbell (1995) 40 Cal.App.4th 1666 [48 Cal.Rptr.2d 340], the courts adopted a contrary view of section 12022.5, subdivision (d).
In Vacca, the defendant claimed the trial court erroneously believed the enhancement was mandatory and not discretionary. On appeal, the court agreed that the enhancement was discretionary. "A fair reading of section 12022.5, subdivisions (a) and (d) lead us to hold that where, as here, use of a firearm is an 'element' of the underlying offense, the general rule that punishment for a section 12022.5 finding is mandatory (section 1170.1, subd. (d)) has no application. In these limited situations, the trial court has discretion to impose such additional punishment." (38 Cal.App.4th at pp. 807-808, mod. 39 Cal.App.4th 583h.)
Surprisingly, however, the court did not discuss People v. Hill, supra, 207 Cal.App.3d 1574. It merely cited it, noting that prior cases "have not expressly held that the additional punishment is discretionary as opposed to mandatory." (People v. Vacca, supra, 38 Cal.App.4th at p. 808.)
In People v. Campbell, supra, 40 Cal.App.4th 1666, the court held that under section 12022.5, subdivision (d), trial courts have discretion to stay the term imposed for a firearm-use enhancement. The court rejected the People's claim that under Hill, a personal use enhancement is mandatory. The court viewed subdivision (d) as "an exception to the long established proscription in section 12022.5, subdivision (a) to not impose additional punishment for the personal gun use if such were an element of the offense." (40 Cal.App.4th at p. 1673.) However, following Vacca, the court concluded that the word "may" in a statute replete with the word "shall" reflected an unambiguous legislative intent to make the enhancement discretionary. The court further opined that "the Legislature's choice of language in creating the subdivision (d) exception evidences a balance between two competing yet well recognized legal principles: 1) Not to use an element of a crime twice to punish a defendant, and 2) to impose increased punishment for those defendants who personally use a gun to commit a crime." (Ibid.)
The Campbell court cited Hill and other cases, acknowledging only that they "hold a court has the power to impose additional punishment [but] do not expressly find such to be mandatory." (People v. Campbell, supra, 40 Cal.App.4th at pp. 1671-1672.)
We believe Hill properly analyzed and interpreted section 12022.5, subdivision (d). Moreover, its conclusion that the enhancement is mandatory and thus does not require a statement of reasons makes abundant sense. Section 12022.5 makes clear that the Legislature considers assault with a firearm more serious than other offenses in which use of a firearm is an element and also that direct perpetrators ought to be more harshly punished than those who simply aid and abet. Thus, when the trier of fact has found that a defendant personally used a firearm, additional punishment is always appropriate and therefore ought to be imposed. To hold that a court must state a further reason would, in effect, judicially engraft an additional element to the enhancement statute.
This is not to say that the imposition of the enhancement may not involve an exercise of discretion. Since there are three possible terms, the court may exercise discretion to impose the mitigated or aggravated term. Thus, imposing either of these two terms requires a statement of reasons. However, in our view, the fact that a defendant personally used a firearm in an assault necessarily increases his or her culpability for the offense and by itself both justifies and mandates imposition of the middle term.
Our view is consistent with rule 428 of the California Rules of Court, which addresses the general criteria affecting sentence selection for enhancements. It provides, in relevant part, "No reason need be given for imposing a term for an enhancement that was charged and found true.... [¶] ... When the defendant is subject to an enhancement that was charged and found true for which three possible terms are specified by statute, the middle term shall be imposed unless there are circumstances in aggravation or mitigation or unless, under statutory discretion, the judge strikes the additional term for the enhancement." (Italics added.)
We acknowledge that the literal interpretation of section 12022.5, subdivision (d) adopted in Vacca and Campbell appears reasonable. However, on closer analysis, it is not.
Inexplicably, Vacca and Campbell fail to acknowledge that in Hill, the court held, albeit implicitly, that enhancements are mandatory under section 12022.5, subdivision (d). This follows ineluctably from the court's conclusion that imposition is not discretionary and therefore requires no statement of reasons. Hill's conclusion also follows a fortiori from its analysis of legislative intent: subdivision (d), in effect, is intended only to limit the scope of the prohibitory phrase "unless use of a firearm is an element of the offense of which he or she was convicted," thereby making the mandatory language of subdivision (a) applicable to the offenses enumerated in subdivision (d).
Defendant, however, correctly notes that Hill is directly on point and simply urges us not to follow it.
Nothing in Hill suggests that an enhancement is discretionary but is not a sentencing choice for which reasons are required. On the contrary, the court acknowledged that imposition of an enhancement appeared to be a "sentencing choice," as defined in rule 405(f) of the California Rules of Court. (People v. Hill, supra, 207 Cal.App.3d at p. 1577.)
Not only do Vacca and Campbell fail to acknowledge Hill's construction of section 12022.5, subdivision (d) and discuss its supporting analysis of legislative history, but they also ignore, or at least overlook, the fact that after Hill construed subdivision (d), the Legislature amended the statute without altering its language. (See Stats. 1989, ch. 18, section 3, pp. 54-55; ch. 19, section 2, pp. 63-64; ch. 1044, section 5, pp. 3635-3636; and ch. 1167, section 5, pp. 4529-4530; Stats. 1990, ch. 41, section 3, pp. 245-247.) These circumstances substantially undermine Vacca and Campbell where the courts appear to assume they were writing on a clean slate and interpreting subdivision (d) for the first time. [3] It is well settled, however, that where, as here, a statute has been judicially construed and the Legislature subsequently amends the statute without altering those portions construed by the court, we presume that the Legislature was aware of the judicial construction and approved it. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [211 Cal.Rptr. 742, 696 P.2d 134]; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734-735 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161]; People v. Lewis (1993) 21 Cal.App.4th 243 [25 Cal.Rptr.2d 827].) The post-Hill amendments to section 12022.5 do not suggest disagreement with Hill, and given Hill's interpretation of subdivision (d), the Legislature had no reason to further clarify its intent by rewording the statute. Under the circumstances, we presume the Legislature found that Hill's holding accurately reflected the purpose and intent of subdivision (d).
We acknowledge, and agree with Vacca and Campbell, that "may" ordinarily connotes a permissive, rather than a mandatory, act. (See discussion 58 Cal.Jur.3d, Statutes, section 147, pp. 541-545; cf. People v. Craft (1986) 41 Cal.3d 554 [224 Cal.Rptr. 626, 715 P.2d 585] [discussing difference between section 667.6, subd. (d), and section 667.6, subd. (c)].) [4] However, legislative intent " 'prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.' " (People v. Pieters (1991) 52 Cal.3d 894, 899 [276 Cal.Rptr. 918, 802 P.2d 420].) Thus, where possible, we must avoid adopting the literal meaning of a word where it conflicts with legislative intent and would lead to absurd results.
Here, "may" must be read in context and in light of the underlying legislative intent. Moreover, in our view, a literal interpretation of section 12022.5, subdivision (d) is unreasonable and would lead to absurd results.
As Hill noted, under (former) section 1170.1, subdivision (h), the court could strike personal use enhancements if it found circumstances in mitigation and states them on the record. (People v. Hill, supra, 207 Cal.App.3d at pp. 1577-1578.) However, shortly after Hill, the Legislature deleted section 12022.5 from the list of statutory enhancements that a trial court had discretion to strike. (See Stats. 1989, ch. 1044, section 1, pp. 3629-3630.) This deletion reflects a legislative intent that use enhancements be imposed regardless of mitigating circumstances.
Indeed, in People v. Thomas (1992) 4 Cal.4th 206, 213-214 [14 Cal.Rptr.2d 174, 841 P.2d 159], the court found this deletion a clear manifestation of a legislative intent to prohibit courts from avoiding use enhancements via their discretion to strike under section 1385, subdivision (a). The court opined that the Legislature could not have intended to eliminate discretion to strike in section 1170.1, subdivision (h), and simultaneously preserved it under section 1385. According to the court, such view was absurd because preserving section 1385 discretion would nullify and render purposeless the deletion from section 1170.1, subdivision (h). Thomas makes clear that the Legislature intends for defendants to suffer additional punishment if they personally use firearms. This intent is consistent with, indeed, it echoes and amplifies, the Hill court's view of legislative intent concerning personal use enhancements: they are mandatory unless use of a firearm is an element of the underlying offense and that offense is not among those enumerated in section 12022.5, subdivision (d).
Section 1385, subdivision (a), permits the sentencing authority "in furtherance of justice [to] order an action to be dismissed." Unless otherwise clearly indicated, this statute authorizes courts to strike enhancements. (See People v. Fritz (1985) 40 Cal.3d 227, 230 [219 Cal.Rptr. 460, 707 P.2d 833].)
In our view, when a personal use enhancement has properly been charged and proved, there is no difference in exercising discretion to strike it and exercising discretion not to impose it. The result is identical: although the Legislature has determined the defendant deserves additional punishment, the court avoids imposing it. The literal interpretation of section 12022.5, subdivision (d) adopted by Vacca and Campbell and urged by defendant would, in effect, return to courts the discretionary power the Legislature at first carefully limited and later completely abolished concerning imposition of personal use enhancements. Moreover, as discussed above, the literal interpretation would judicially require a layer of justification for an enhancement over and above what the Legislature has expressly declared is sufficient. In our view, the consequences of a literal interpretation of "may" in subdivision (d) are unreasonable, if not absurd, and, therefore, must be avoided.
In sum, we reject defendant's claim that the court erred in failing to state reasons for imposing the personal use enhancement. No reason was required for the imposition of the middle term.
III. Striking Use Enhancement
Defendant contends that the court erred in staying, rather than striking, the personal use enhancement imposed for his violation of section 246.3, i.e., grossly negligent discharge of a firearm. We agree.
As noted above, section 12022.5, subdivision (a) provides for imposition of a personal use enhancement "unless use of a firearm is an element of the offense of which [the defendant] was convicted." [6] "The phrase 'element of the offense' signifies an essential component of the legal definition of the crime, considered in the abstract." (People v. Hansen (1994) 9 Cal.4th 300, 317 [36 Cal.Rptr.2d 609, 885 P.2d 1022], original italics.) Obviously, use of a firearm is an element of section 246.3, which punishes anyone who "willfully discharges a firearm in a grossly negligent manner ...."
The People claim the prohibitory language in section 12022.5, subdivision (a) does not bar the enhancement because personal use of a firearm is not an element of the offense. This claim is meritless. The prohibitory language of subdivision (a) does not require that personal use be an element of the offense.
In the alternative, the People claim defendant has no basis to complain because the court stayed the term for the enhancement. We disagree.
Section 12022.5, subdivision (a) mandates an additional term unless use of a firearm is an element of the offense. Thus, by its express terms this statute is inapplicable. (Cf. In re Shull (1944) 23 Cal.2d 745, 751 [146 P.2d 417]; People v. Moreno (1982) 128 Cal.App.3d 103, 110 [179 Cal.Rptr. 879]; People v. Cervantes (1970) 13 Cal.App.3d 587, 595 [91 Cal.Rptr. 691].)
The remedy for the erroneous imposition of a use enhancement is not, as the People maintain, to stay it, but to strike it. "A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency. [¶] In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding. It is tantamount to a dismissal. In particular, the striking of an enhancement implies that the enhancement is legally insupportable, and must be dismissed ...." (People v. Santana (1986) 182 Cal.App.3d 185, 190-191 [227 Cal.Rptr. 51], fn. omitted.)
Here, imposition of the personal use enhancement is contrary to the express language of the enhancement statute itself. A "temporary suspension" of the additional term could accomplish no purpose, since no "defined contingency" can render it operative. Thus, for example, even if any remaining portions of the sentence were invalidated, the term could not be reinstated. Because the enhancement is "legally insupportable" under any conditions, it must be stricken. (Cf., e.g., People v. Allums (1975) 47 Cal.App.3d 654, 659 [121 Cal.Rptr. 62], disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 286, fn. 35 [148 Cal.Rptr. 890, 583 P.2d 748].)
As discussed above, the Legislature has prohibited courts from exercising discretion to strike personal use enhancements when they have been properly charged and found true. Striking the enhancement in this case, however, does not involve an exercise of discretion. Rather, the enhancement is not authorized in the first place: it is an illegal sentence.
Disposition
The judgment is modified to strike the enhancement imposed under section 12022.5 pursuant to the jury's finding that defendant personally used a firearm in violating section 246.3. The trial court shall direct the clerk to prepare an amended abstract of judgment reflecting this modification and to forward it to the appropriate authorities. As so modified, the judgment is affirmed. Premo, Acting P. J., and Elia, J., concurred.
In 1994, the Legislature moved the provisions of this section to Penal Code section 1202.4. (Stats. 1994, ch. 1106, sections 2, 3.) That section became effective before defendant was sentenced again on October 5, 1994. Given the identity of the provisions, our analysis applies equally to the imposition of restitution and fines under former Government Code section 13967 and Penal Code section 1202.4.
Unless otherwise specified, all further statutory references are to the Penal Code.