PEOPLE v. FUENTESAppellant’s Opening Brief on the MeritsCal.December 17, 2014 Jn the Supreme Court of the State of Califarnia THE PEOPLE OF THE STATE OF CALIFORNIA, Appellant, Vv. ALEXIS ALEJANDRO FUENTES, Respondent. Fourth Appellate District, Division Three, Case No. G048563 meeeaky Case No. $219109 SUF DEC 17 2014 Xo eee .fem WOE vies Glerk Orange County Superior Court, Case No. 13NF0928 The Honorable Nicholas S. Thompson, Judge - APPELLANT’S OPENING BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HOLLY D, WILKENS Supervising Deputy Attorney General STEVE OETTING Supervising Deputy Attorney General LISE S. JACOBSON Deputy Attorney General KRISTEN KINNAIRD CHENELIA Deputy Attorney General State Bar No. 225152 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 525-4232 Fax: (619) 645-2271 Email: Kristen.Chenelia@doj.ca.gov Altorneysfor Respondent Page Question Presented ........0..000 sscsasasanennsavevevevsevensessisstvettevvsevesesestsssnsassessssseec Tytroduction......cssecessessssesessscsesscessecsesssesrecsesseesescsesssseessesssssstensseucenssesseraueats 1 Statement of the Case oo... scsccsssesesseesssssessevsserepesssesssesesecssseeasersseecstentes 2 ‘Argument sesaneeonsaceeasesoneecensasevcesaeeessoeasnasepsneeeasevseesnasesnessanesensuerees“seneuseesesesaes 3 Section 186.22, subdivision (g), granting courts the discretion to dismiss the additional punishmentfor qualified gang enhancements, eliminates a trial court’s general discretion to dismiss gang allegations under. SOCHON 1385 oi eceeccsscsecscseeeeesssessesseseneeteseceeconsesnesnesatenseess 3 A. Statutory history of Penal Code sections 1385, 186.22, and 1170.1 oo. ccesecssesesereseessscessessscsseasseecenee 5 B. Principles of statutory construction................seteeeneeenes 7 C. Penal code section 1385 grants the trial court discretion to dismiss an enhancement unless clear legislative direction indicates otherwise............ 8 D. Thestatutory language of section 186.22, subdivision (g), provides clearlegislative direction that precludes the application of section 1385 to gang enhancements...........ceeee 10 1. Section 186.22, subdivision (g), is in conflict with section 1385, subdivisions (a) and (C) os..eeeceeececesceeseveseeeesecseeessnerenssneeanesss 10 2. The legislative history confirms that sections 186.22, subdivision (g), and 1385, subdivision (a), Conflict...eee 15 3. Section 186.22, subdivision (g), is the more specific statute and in substance, the later enacted statute...eectseteees 23° E. Limited judicial discretion furthers the statutory scheme, harmonizes the statutes, and prevents absurd results... ceeeseesseecsssssersvseessntesnercaesevseseeere 24 CONnCIUSION 0... eee ceeeeeeseeseseeeetsseeneeersnnvaeeseaeessaesdesseassenetecssesesensneseereseeateneeees 27 TABLE OF CONTENTS TABLE OF AUTHORITIES Page CASES Arias v. Superior Court . (2009) 46 Cal4th 969 occcscsesesscsssssesserssssseessssessvsssevessessnserssvecsseees 11, 13 ‘City ofPetaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal. 2d 284 ooccscesssssscesesssssressssessescstecsesesaresesessesscesansavens 24 Inre Greg F. | (2009) 55 Cal.4th 393 oo. .cesscssessesssssssesessvesesssessssscesnssessesseeseeseseseeveens 8, 11 Inre LW. (2002) 29 Cal4th 200... ccccsccssessessessscsesssessessssecsesesssesseesesesavsnestsecseenven 7 In re Pacheco (2007) 155 Cal-App.4th 1439ccsccesssessssescsesssessssssssssstessarennenes 19 In re Shull (1994), 23 Cal.2d 745 oo. cccscccssssesesssescssesessvesscseesvavsvessvscsarssnsavevenvevareetens 23 In re Varnell (2003) 30Cal.4th 1132... cccccccccscssesescssssessusscesssssreessaressecreeseesrsssens 8, 25 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911 seonsecennavarescesesnenenesesssussuniierssuecnsncecsseernnnneescenseeeeere 8 Klajic v. Castaic Lake Water Agency - (2004) 121 CalApp.4th Soocsssseesesseesessscsssesecsecssssesesscesarsnsavevesee il People v. Bradley. . (1998) 64 Cal4th 386oceessessssesccssssessessssssessssscsvssssssessrsnseresersseeny 17 People v. Bradley (1998) 64 CalApp.4th 386 oicsescsssesssessssccsssevsssesssssrssrsesesseseacecssees 16 People v. Briceno - oo | (2004) 34 Cal.4th 451 ooccsessssssssssssssscserssssssssecsrscssssesessssssessrensnrenes 10 People v, Burke (1956) 47 Cal.2d 45 wi cssssessssssecesssessvsssstsstscsenssssacarsnceveasavens 5, 25, 26 il People v. Campos (2011) 196 CalApp.4th 438occcesessssessecsseeessensssees 13, 14, 15, 23 People v. Coronado (1995) 12 Cal.4th 145oecesseeseeereseesseseeessenesteneeeneessecaseeeneenensenses 23 People v. Fritz : (1985) 40 Cal.3d 227 oosscssensersessersersessesssetsesserssssesepssesensaesssvaceseensaeeees 5 People v. Gardeley (1996) 14 Cal4th 605ocssecsesesesssssseccseesssessnssessstesseasseseneaseess 8, 26 People v. Guzman (2005) 35 Cal4th 577 oc ccccccsesssecssseeesresesesesscnssesssecesssneecessesenssesensaesneas 22 People v. Harrison (2013) 57 Cab4thLLcscstsessscsesesssensetseeesssecensseeeteceieaseres 8 People v. Hernandez (2004) 33 Cal.4th 1040oesesessersseensscsessstenseesesndererseserseeeeceenees 26 People y. Jenkins (1980) 28 Cal.3d 494eessossessnsssessassusauersedreseeveerensisreeneateveneeaes 23 People v. Jenkins (1995) 10 Cal4th 234.ccsessecesecsscesteecssneseseerssssvsessessvssecnsssressneesssess 8 People vy. Meloney (2003) 30 Cal.4th 1145ooeeceseessscsseeessssesteesetesceeseseeeatecseseesetensteeens 18 People v. Mendoza (2000) 23 Cal.4th 896occcccesssesessssesesssesessseeeseetssssenssesenseeeensectesvensans 8 People v. Rodriguez (1986) 42 Cal.3d 1005occesceccssecesnessesceecseasesseseesseeesenetesseneersssteres 9 People v. Scott ; (2014) 58 Cab.4th 1415ocesceseeessenstereseesesnesesseesveneseeaversnecanans 8,15 People v. Sengpadychith (2001) 26 Cal4th 316.ceeseceeeseseeeeeeeeeeessesesaeeasesssssassteasessovernees 26 People v. Superior Court (Romero) (1996) 13 Cal.4th 497cccceccccseseseseeesessceesesssesseesesssenessenseenesee passim ili People v. Tanner (1979) 24 Cal.3d 514cccccceccccssssssutsssessecssvessarscnsarsenssessepsevaseesessess 5,9>- People v. Thomas (1992) 4 Cal4th 206 on. ecccsssesssssesssesssessssesssssessessesserssessseseesanen 8, 9, 23 People v. Tran (2011) 51 Cal.4th 1040.ccesssseecsscssssssssssssccssearsnessnecsessanenssee 26, 27 People v. Williams . (1981) 30 Cal.3d 470...sssesesesersessessevenssesuesenveseesesesssssesacavarscacessacavees 9 iv STATUTES Labor Code § 2699, SUbC. (8)... eesesecsestcesensssssessssssessesscssersrsssseassesesaseeeesesssetsescsssusaunss 13 Penal Code § 186.20 oe eeseeseceeteensesssnssssssssecsessessesscenessseassssasassessestssesseasssaseeesseapssvavanes 5 I 0 )passim § 186.22, subd. (DB) occcsescesssscssescecessesssssessssseseeessesssssersesesseseereeenes passim § 186.22, Subd. (0).cceseesseecsecseeersessessesesersesssescsssssesesseseneesserseseas passim § 186.22, subd. (D)(4) oo... eesesssesessseecssssessereseseeeseacenssssesesssensees 6, 10, 21, 22 § 186.22, subd. (D)(5) oo. ssececesenesesseessssencsesspesessesseeessseasarseseereets passim § 186.22, SUbC. ()oeeccessscrecssessessessstecsessesserssssereeesssseecenens 6, 10, 22, 26 § 186.22, subds. (e) & (fo. eccccsccesereessesessessserssesessnseccsearsnensssuassevecsesseess 26 § 186.22, subd. (2)... ceccsseeecesevecesscsseecssecsnsserussesecsessesvesenevsensuseeseses passim § 496d, subd. (€)) oo... ee ccseescssssesscesersssesaeceseessesesseseesessereseussesscsaraueneuseseuee 2 §667, SUB. (8) oo. eesssccsssseseesssceecsscseesseeseesccssseussesassesssessscsusrsccussensaveavanas 5 § 667, SUD. (Lf)... cee ee cecesscnecnstceeesessrssepescseesssesssasavsessseeseteseeasensiasens 11, 12 § 667, Subd. (£)(1) oeces setesssetsecesetecseteesecserecsseesessecsserscsssaseesedevaseensensens 11 § 667, SUC. (f)(2) oo. eeeesesssercesseecesssessenecesseeetavecsestereessessssesseaesreenseseees 11 § 667 subds, (C) & (C)..ccsceccsccecsssessscessssersesesssesesecscessessessasarcataesensseanes 13 SLL OLD cccccsscssssscsccecsssessesssssssecssssesssssvvsensuscesssaseessssvscesssssesesnssesssnvesssveeesen 5,7 § 1170.1, subd. (A)oecessssecessssseesesersescoeseesessesecsssssscsecerceversensentes passim § 1238, subds. (A)(L) 8 (8) eeeececseescssescseesevsssnseasssesssssenstsnseegesssesesansespersease 2 S88 eectstssseceeeatsesesteesenstseseesenssvacsasessenesserenssesessceeseenseeeasecuass passim § 1385, subd, (8) oo. eee eeesseccsessesseassnsessessssessssresssessesscassessessesssvecses 10, 15, 22 § 1385, SUD. (D) oo.ec cecesessseseetsesecsseneesesesssessensvscsesesseseesezsnensseeepesausanseesvaes 5 § 1385, SUDA. (C) orc ecccsccenseeeceeeecsstsesernesasseaeestseserssesssssseersaessvansuapases passim § 1385, subd. (c)(2).eves evevaceaeseesaevenapescessaessscenserseecasacssapicecueeesstesonsapeensneneas 20 § 120221eeeceesecnsesnseccsetcessesseegessesnesessneaseussssessesenssseseeseesesseereseensies 18 Stats. 1986, Chapter 85, § 2...cccccsccsecsscsessressstsnsressseseeessessreceuesasesens 5 Stats. 1988, Chapter 1242, $ Locsesessserssesesssereenseers veseseesesecocersuaceeseceen 6 Stats. 1989, Chapter 144, § Lonccesesssesnesssssescessescessseessseresaceeecessusesaves 6 Stats, 1992, Chapter 611, § 3.09 ....... pesesevaecauvevsesaeasenssenetuerassetsatsesrsenensersetins 6 Stats. 1997, Chapter 750, § 9.o..cccccccssssscssvsescsessssssscssecscsesesecaseucesscsesaeeceay 7 Stats. 1998, Chapter 926 oo.eesesensterenesecsseenseesseecssessstessescesrsssssearesneee 7 Stats. 2000, Chapter 689, § 3.cccsscessessetescsesseessesesessseseeeseeesenees 7,16 Stats. 2001, Chapter 854, § 22.ceccscscsssssssscscsssescstseceseseevecsesesessecssserens 6 OTHER AUTHORITIES Assembly Bill No. 1808 (1999-2000 Reg. Sess.) oo... cceesesssseeeeeneen 7,17 Senate Bill 1900 oo.ssesseseeseseescssscsssesescseecsssnesssseseseseesscsesescsesesestaventins 7 QUESTION PRESENTED Whether Penal Codesection 186.22, subdivision (g), eliminates trial court’s power under Penal Code section 1385, subdivision (a), to dismiss a gang enhancementalleged pursuant to Penal Code section.186.22, subdivision (b)(1). INTRODUCTION The prosecutor charged defendant Alexis Alejandro Fuentes with vehicle theft and receiving stolen property and alleged Fuentes committed both crimes for the benefit of a criminal street gang. After the trial court dismissed the gang enhancementallegations, over the prosecutor’s objection, Fuentes admitted the substantive charges and the trial court placed him on three years’ probation. The People appealed the dismissal of the gang allegations. The Court of Appeal ruled the trial court had discretion to dismiss the gangallegations under Penal Codesection 1385,! because there was no clearlegislative direction precludinga trial court from doing so. The Court ofAppeal was mistaken. Theplain language of section 186.22, subdivision (g), which directly conflicts with section 1385, establishes that a trial court is limited to striking only the punishment for gang enhancements and not the gang allegations themselves. This interpretation of the law is bolstered by the legislative history of sections 186.22 and 1385. It is also consistent with the principle of statutory construction that the more specific statute, section 186.22, subdivision (g), controls over the general one, section 1385, This interpretation requires that findings be made on gangallegations and preserves true findings in order to prosecute future gang-related crimes and further the gang statute’s purpose of eradicating gang crime. Accordingly, ' Alf future undesignated code references are to the Penal Code. this Court should adhere to the Legislature’s intent and holdthe discretion of a trial court is limited to striking the punishment of a gang enhancement ‘accordingto the termsof section 186.22, subdivision (g). STATEMENT OF THE CASE On March 18, 2013, Fuentes was charged by felony complaint with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (§ 496d, subd. (a)). The complaint alleged these charges were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) (CT 1-2.) On May2, 2013, following an unrecorded chambers conference, the prosecutor objected to thetrial court’s indicated sentence, which provided that if Fuentes pled guilty to the charges, the court would dismiss the gang enhancementallegations pursuant to section 1385. (RT 1.) The prosecutor argued the trial court had engagedin improperjudicial plea bargaining becauseit lacked the discretion to dismiss the gang allegations under section 1385, and waslimitedto striking the additional punishment for the purpose of sentencing. (RT 1-2.) Thetrial court explained that it had balanced the circumstances of the crimes, Fuentes’ prior record, andthe threat he posed to the community before choosingto exercise its discretion. (RT 2-3.) The trial court overruled the objection and granted Fuentes’ motion to dismiss the gang allegations undersection 1385, subdivision (a). (RT 1-3, 12-13.) Thereafter, Fuentes pled guilty to the remaining charges and was granted three years’ formal probation with the condition he serve 240 days in local custody. (CT 5-14, 23; RT 10.) The Orange County District Attorney appealed thetrial court’s order dismissing the gang allegations. (CT 15-16; § 1238, subds.(a)(1) & (8).) In a published decision, the Court of Appeal concluded section 186.22, subdivision (g), did not eliminate thetrial court’s section 1385, subdivision (a), powerto dismiss orstrike a section 186.22, subdivision (b), | gang enhancement. (Slip Opn. at p. 2.) Specifically, the court ruled the phrase, “notwithstanding any other law”in section 186.22, subdivision (g), wasnot clear direction that the Legislature intendedto eliminatea trial court’s authority under section 1385, subdivision (a), to dismiss a gang allegation becausethestatutes are not conflicting, contrary, or inconsistent. (Slip Opn.at pp. 5-8.) In this regard, the court reasonedthat, because section 186.22, subdivision (g), was enacted prior to section 1385, subdivision (c), which grants discretion to strike the additional punishment in lieu of dismissing the allegation, section 186,22, subdivision (g), complemented, rather than displaced section 1385, subdivision (a). (Slip Opn.at pp. 8-9.) Thus, the Court of Appeal affirmed thetrial court’s order dismissing the gang enhancementallegations, but remanded the matter to permit thetrial courtto state its reasons for dismissing the allegations in an order entered upon the minutes. (Slip Opn.at pp. 12-13.) On August 13, 2014, this Court granted the District Attorney’s petition for review. Thereafter, the matter was transferred to the Attorney General’s Office to represent the People in this Court. ARGUMENT I. SECTION 186.22, SUBDIVISION (G), GRANTING COURTS THE DISCRETION TO DISMISS THE ADDITIONAL PUNISHMENTFOR QUALIFIED GANG ENHANCEMENTS, ELIMINATES ATRIAL COURT’S GENERAL DISCRETION TO DISMISS GANG ALLEGATIONS UNDER SECTION 1385 The Legislature has provided broad authority to trial courts to dismiss actions andstrike punishment under section 1385, and this discretion is retained in the absenceofclearlegislative direction to the contrary. The Legislature enacted section 186.22, subdivision (g), to limitjudicial discretion to dismiss under section 1385 in favor of both providingstricter and longer terms for crimes committed in furtherance of a criminalstreet gang, and also preserving gang findings. The Legislature manifested this intent in the plain language of section 186.22, subdivision (g), which ‘directly conflicts with section 1385. Thelegislative history confirmsthis conflict. Whensection 186.22, subdivision (g), was enacted, courts already had discretion to strike the punishments for enhancements under section 1385, subdivision (a), and former section 1170.1, subdivision (h). Therefore, section 186.22, subdivision (g), conflicts with rather than complements the authority in section 1385, subdivision (a), to dismiss actions. The subsequent addition of section 1385, subdivision (c), does not establish otherwise as this provision, which expressly authorizes a court to strike punishment for enhancements, was addedtoclarify existing authority. ‘Additionally, as the morespecific statute, the Legislature intended section 186.22, subdivision (g), to apply exclusively to a trial court’s discretion to dismiss or strike the punishment on gang enhancements. Furthermore, the Court ofAppeal’s contrary interpretation leads to absurd consequences by granting courts the broad authority to dismiss, but limited authority to strike punishment. Applying section 1385 to section 186.22, subdivision (b), enhancements would rendersection 186.22, subdivision (g), surplusage. Finally, the Legislature enacted the STEP Act asa tool to eradicate gangs. A crucial part of proving gang activity is establishing the existence ofa gang andits criminalactivities. The true findings of gang allegations are vital to proving these components in future cases. Therefore, public policy advocatesthe preservation of the gang findings themselves, even if they are not used immediately to enhance a sentence. Accordingly, the Court ofAppeal wasincorrect in its conclusionthat section 186.22, subdivision (g), does not eliminatea trial court’s discretion to dismiss gang enhancements undersection 1385. A. Statutory History of Penal Codesections 1385, 186.22, and 1170.1 Section 1385 was enacted in 1872. As relevant here, in 1988 section 1385, subdivision (a), provided, “The judge or magistrate may, either ofhis or her own motion or uponthe application of the prosecuting attorney, and in furtherance ofjustice, order an action to be dismissed. The reasonsfor the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.” Subdivision (b)’ ofthis section stated, “This section does not authorize a judge to strike any prior conviction ofa serious felony for purposes of enhancement of a sentence under Section 667.” “Section 1385 has been construed to provide judicial powerto dismiss or strike -- within the court's discretion -- allegations which, if proven, ‘would enhance punishmentfor alleged criminal conduct.” (People v. Tanner (1979) 24 Cal.3d 514, 518; People v. Burke (1956) 47 Cal.2d 45, 50-51.) Although not expressly provided by statute, trial courts commonly struck proven prior convictions or other allegations at sentencing in the interest ofjustice to avoid imposingstatutorily increased penalties. (People ‘vy. Burke, supra, 47 Cal.2d at pp. 50-51.) In 1988, the Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act; § 186.20). The STEP Act included section 186.22, subdivision (b), which codifies gang enhancements for the purpose of imposing additional punishment when a ‘felony is committed in furtheranceof a criminal street gang, Asdiscussed * In People v. Fritz (1985) 40 Cal.3d 227, the court helda trial court could strike in the furtherance ofjustice prior serious felonyconviction allegations made undersection 667, subdivision (a), which mandated a five-year enhancementfor each conviction. Section 1385, subdivision (b), was added in 1986 in response to the Fritz opinion in order to withdraw the ‘trial court’s powerto strike these allegations. (Stats. 1986,ch. 85, § 2.) post, section 186,22 lists the specific punishments applied to varying base crimes. Section 186.22, subdivision (b)(4), expressly addresseda trial court’s discretion regarding these punishments: “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancementsprovided in this section in an unusual case where the interests ofjustice would best be served, if the court specifies on the record and enters into the minutes the circumstancesindicating that the interests of justice would best be served by that disposition.” (Stats. 1988, ch, 1242, § 1.) The following year, section 186.22, subdivision (b)(4), was designated as subdivision (d), and “or refuse to impose the minimum jail sentence for misdemeanors” was added. (Stats. 1989, ch. 144, § 1.) In 1993, section 186.22, subdivision (d), was amended by removing “provision of.” (Stats. 1992, ch. 611, § 3.09.) Finally, in 2001, section 186.22, subdivision (d), was designated as subdivision (g), and reads as it does today: Notwithstanding any other law, the court maystrike the additional punishment for the enhancements provided in this section or refuse to impose the minimum jail sentence for misdemeanors in an unusual case wherethe interests ofjustice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests ofjustice would best be served by that disposition. (§ 186.22, subd.(g); Stats. 2001, ch. 854, § 22.) At the-time the STEP Act was enacted, former section 1170.1, subdivision (h), read as follows: (h) Notwithstanding any other law,the court maystrike the additional punishment for the enhancements provided in subdivision (c) of Section 186.10 and Sections 667.15, 667.5, 667.8, 667.83, 667.85, 12022, 12022.1, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9 of this code, or the enhancements provided in Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code,if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment, In 1997, Sentencing Reform Bill 721 was enacted by the Legislature as the first of three steps of basic sentencing reform to simplify the Determinate Sentence Law (DSL) without significantly altering the general sentencing scheme. This included deleting former section 1170. l, ‘subdivision (h). (Stats. 1997, ch. 750, § 9.) “In repealing subdivision (h) of Section 1170.1, which permitted the court to strike the punishmentfor certain listed enhancements,it is not the intent of the Legislatureto alter the existing authority and discretion of the court to strike those enhancements or to strike the additional punishment for those enhancements pursuantto ‘Section 1385, except insofar as that authority is limited by other provisions of the law.” (bid.) Senate Bill 1900, the substance ofwhichis not relevant to this matter, was the secondstep taken to reform the DSL. (Stats. 1998, ch. 926.) In Assembly Bill 1808, the third andfinal step to sentencing reform, the Legislature found it necessary to clarify the discretion of the courts to strike the additional punishmentof an enhancementby adding section 1385, subdivision (c), which provided as follows: (c) (1) Ifthe court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishmentfor that enhancementin the furtherance ofjustice in compliance with subdivision (a). (2) This subdivision does not authorize the court to strike the additional punishment for any enhancementthat cannot be stricken or dismissed pursuant to subdivision (a). (Stats. 2000, ch. 689, § 3.) B. Principles of Statutory Construction This Court’s “role in construing a statute is to ascertain the - Legislature's intent so as to effectuate the purposeofthe law. [Citations.] “Weconsiderfirst the wordsofthe statute because they are generally the mostreliable indicator of legislative intent.’” (nn re JW. (2002) 29 Cal.4th 200, 209; People v. Gardeley (1996) 14 Cal.4th 605, 621.) “[W]e construe the words in question in context, keeping in mind the nature and obvious purpose of the statute .... We must harmonize the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.” (In re Greg F. (2009) 55 Cal.4th 393, 406, quoting People v. Mendoza (2000) 23 Cal.4th 896, 907- 908,internal citations and quotations omitted.) Furthermore, an interpretation that would lead to absurd results should be avoided. (People v. Jenkins (1995) 10 Cal.4th 234, 246.) | However, if the terms ofa statute are unclear or ambiguous, this Court may “‘lookto a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporancous administrative construction, and the statutory scheme of which the statute is a part.’” (People v. Scott (2014) 58 Cal.4th 1415, 1421, quoting People vy. Harrison (2013) 57 Cal.4th 1211, 1221-1222.) The interpretation of sections 186.22 and 1385 is subject to de novo review. {Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) C. Penal Codesection 1385 Grants the Trial Court Discretion to Dismiss an Enhancement Unless Clear Legislative Direction Indicates Otherwise Section 1385 vests a trial court with the general authority to dismiss a criminal action, which includes the charges themselves andallegations. (Zn re Varnell (2003) 30 Cal.4th 1132, 1137.) “[T]he judicial power to reduce a defendant's sentence by striking a sentencingallegation in furtherance of © justiceis statutory. Because the poweris statutory, the Legislature may eliminate it.” (People v. Superior Court (Romero) (hereinafter Peoplev. Romero) (1996) 13 Cal.4th 497, 518; People v. Thomas (1992) 4 Cal.4th 206, 210-211.) “This does not mean, however,that any statute defining the punishment for a crime can be read as implicitly eliminating the court's power to imposea lesser punishment by dismissing, or by striking sentencing allegations, under section 1385. This is becausethe statutory power to dismiss in furtherance ofjustice has always coexisted with statutes defining punishment and must be reconciled with the latter.” (People v. Romero, supra, 13 Cal.4th at p. 518.) A court should not’ interpret a statute as eliminating the court’s power undersection 1385 absent a clear legislative direction to that effect. (Ibid., citing Peoplev. , Rodriguez (1986) 42 Cal.3d 1005, 1019.) Thetrial court retains its discretion “where the Legislature has not clearly evidenced a contrary intent.” (People v. Thomas, supra, 4 CalAth at p. 211, quoting People v. Williams (1981) 30 Cal.3d 470, 482.) As the Court ofAppeal below pointed out, the Legislature has directly eliminated section 1385, subdivision (a), authority to dismissorstrike an enhancementallegation in some statutory provisions with the express language, “Notwithstanding section 1385.” (Slip Opn.at p. 7,citing §§ 667.61, subd. (g), 667.71, subd. (d), 12022.5, subd. (c), & 12022.53, subd. {h).) But clear legislative direction does not require that the Legislature expressly refer to section 1385 in order to precludeits operation. (Peoplev. Thomas, supra, 4 Cal.4th at p. 211.) It may be evidenced by a “more specific proscription on the court’s power.” (People v. Rodriguez, supra, 42 Cal.3d at p. 1019 [Legislature’s enactmentof section 1203.06 disclosed ‘an intent to preclude the exercise of discretion by trial court from striking the use finding].) Also, clear legislative intent abrogating the trial court’s authority to strike under section 1385 may exist where the invocation of section 1385 would nullify a particular result intended by a statutory scheme. (People v. Tanner, supra, 24 Cal.3d at p. 520.) D. The Statutory Languageofsection 186.22, subdivision (g), Provides Clear Legislative Direction that Precludes the Application ofsection 1385 to Gang Enhancements” The plain language of section 186.22, subdivision (g), exhibits the Legislature’s intent that judicialdiscretion be limited to striking or refusing to impose otherwise mandatory punishmentfor gangallegations. Section 186.22, subdivision (b), identifies three distinct categories of base crimes and the corresponding punishments. Section 186.22, subdivision (b)(1), is an enhancement and imposes an additional determinate term of two,three or four years, unlessit is a serious or violent felony, in which a five-yearor ten-year term applies. (§186.22, subd. (b)(1).) Section 186.22, subdivisions(b)(4) and (b)(5), are alternate penalty provisions providing for an indeterminate sentence and minimum 15 years imprisonmentbefore parole eligibility. (§ 186.22, subds. (b)(4) & (5).) In addition, whenthe underlying offense is punishable as a felony or misdemeanor, section 186.22, subdivision (d), an alternate penalty provisionimposing a minimum jail term, applies. (See People v, Briceno (2004) 34 Cal.4th 451, 460, fn. 7) | Section 186.22, subdivision (g), expressly grants trial courts the limited authority to strike the additional punishment for gang enhancements and the alternate penalty provision imposing a minimum jail term. It does not authorizestriking the enhancementitself. The languageofthe statute 3 In People v. Venegas (2014) 229 Cal.App.4th 849, the Court of ‘Appeal held section 186.22, subdivision (g), did not provide clear language the Legislature intended to eliminate a trial court’s section 1385, subdivision (a), authority to strike a section 186.22, subdivision (b)(4), allegation imposing an alternate sentencing scheme. On December10, 2014, this Court granted the Petition for review filed in People v. Venegas (CSC $221193) and deferred briefing pending the outcomeofthe current matter. - 10 evidencesclearlegislative direction that section 1385, a conflicting and * more general statute, does not apply. 1. Section 186.22, subdivision (g), is in conflict with section 1385, subdivisions (a) and (c) Theplain language of section 186.22, subdivision (g), expressly limits a court’s authority to strike gang enhancements. Asset forth earlier, section 186.22, subdivision (g), provides: Notwithstanding any other law, the court maystrike the additional punishmentfor the enhancements providedin this section or refuse to impose the minimumjail sentence for misdemeanors in.an unusual case wherethe interests ofjustice would best be served,ifthe court specifies on the record and enters into the minutes the circumstances indicating that the interests ofjustice would best be served by that disposition. (Italics added.) Asthis Court has observed, “When the Legislature intends for a statute to prevail overall contrary law,it typically signals this intent by using phraseslike ‘notwithstanding any other law’ or ‘notwithstanding other provisions of law.’” (dn re Greg F., supra, 55 Cal.4th at p. 406.) “*The statutory phrase “notwithstanding any other provision of law”has Ceded. been called a “term ofart”’”[citation] that declares the legislative intent to override all contrary law.’” (Arias v. Superior Court (2009) 46 Cal.4th 969, 983, quoting Klajic v. Castaic Lake Water Agency (2004) 121 ‘Cal.App.4th 5, 13.) In People v. Romero, supra, 13 Cal.4th 497 (Romero), this Court addressed whether section 1385 authorized trial court to strike prior felony conviction allegations under the Three Strikes law (§ 667, subd.(f)). (id. at p. 504.) Section 667, subdivision (f)(1), provided: “Notwithstanding - any other law, subdivisions(b) to (i), inclusive, shall be applied in every case in which a defendanthas a prior felony conviction as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior il felony conviction except as provided in paragraph (2).” Subdivision (f)(2) of section 667 read: “The prosecuting attorney may moveto dismiss or strike a prior felony conviction allegation in the furtheranceofjustice pursuant to Section 1385,orif there is insufficient evidence to prove the prior conviction. If upon the satisfaction of the court thatthere is insufficient evidence to prove the prior felony conviction, the court may dismissorstrike the allegation.” (Romero, supra, at p. 508.) Unlike section 186.22, subdivision (g), section 667, subdivision (f), presented a potential violation of the doctrine of separation ofpowersif the trial court were authorized to dismiss under section 1385 only at the behest of the prosecutor. (People v. Romero, supra 13 Cal.4th at p. 513.) Recognizing the prosecutor did not have “veto power”overthetrial court’s judicial responsibility of disposing of the charges, this Court reaffirmed that the Legislature may not condition judicial sentencing authority on the approvaloftheprosecutor. (Romero, supra, 13 Cal.4th at p. 516.) “When the jurisdiction of a court has been properly invoked by thefiling of a criminal charge, the disposition of that charge becomesajudicial responsibility. [Citations.]” (d. at p. 517.) The court in Romero next considered the languageofthe statute to determine if the Legislature had intendedthetrial court to retain the authority to dismiss in furtherance ofjustice on its own motion. (Peoplev. Romero, supra 13 Cal.4th at pp. 519-520.) The use of the words “pursuant to Section 1385”indicated the Legislature was proceeding on the assumption that section 1385 applied to cases coming underthe Three Strikes law. Otherwise, the Legislature could have authorized a motion to dismiss. without invoking section 1385 by not using that language, or approved an amendmentto the statute removing the language. (/d.at p. 520.) Moreover, a review of the history of conflict between the branches of 12 government showedreferences to section 1385 in sentencing statutes are not “lightly or thoughtlessly made.” (dd. at p. 522.) The Court also considered whetherthe phrase, “Notwithstanding any other law, subdivisions (b) to (i)” meantthe ThreeStrikes law applied in every case where a defendant had a prior conviction. (People v. Romero, supra, 13 Cal.4th at pp. 523-524.) A trial court’s discretion under section 1385 wasnot limited by this phrase because it was expressly authorized within the Three Strikes law, and thus, a part of it. ([bid.) Other uses of this phrase were found in section 667 subdivisions (c) and (d), and were not inconsistentwith a trial court’s authority to strike under section 1385. (Jd. at p. 524.) Romero’s analysis of the interplay between section 1385 and the Three Strikes law guidesthe statutory interpretation of sections 1385 and 186.22, subdivision (g). Most notably, unlike in Romero, section 1385is not referenced in section 186.22, and therefore, does not expressly come within the parameters of section ] 86.22. To put it more succinctly, the Legislature’s omission of section 1385 means there is no clear legislative direction that section 1385 does apply to section 186.22. The “notwithstanding” clause in Romero did not havethe effect ofprecluding section 1385 because that section and discretion were expressly included in the Three Strikes law, which contemplated it applied to those cases. In stark contrast, section 186.22, subdivision (g), does not havea similar reference, or any reference to the authority to dismiss gang allegations, and ‘so the notwithstanding clause precludes section 1385, Therefore, by virtue of section 186.22, subdivision (g)’s “notwithstanding” clause, those provisions of law that conflict with, are contrary to, or inconsistent with section 186.22, subdivision (g), are inapplicable to actions brought undersection 186.22. (See e.g., Arias v. Superior Court, supra, 46 Cal.4th at p. 983 [Labor Code section 2699, 13 subdivision(a), “notwithstanding any other provision of law” meant provisions that conflict with the act's provisions are inapplicable to actions broughtunder the act].) As People v. Campos (2011) 196 Cal.App.4th 438 (Campos) concluded, section 1385 is such a provision. In Campos, the Court of Appeal determined thetrial court did not havethe authority to strike or dismiss a section 186,22, subdivision (b)(5), alternate penalty provision. (Campos, supra, 196 Cal.App.4th at p, 454.) In reaching this conclusion, the court first observed that section 186.22, subdivision (g), did not grant the authority because it expressly applied to enhancements and thealternate penalty provision providing for a minimum jail sentence,notthealternate penalty provisions in subdivisions (b)(4) and (b)(5). (Id. at pp. 448-450.) | Next, Campos determined section 1385 did not confer the authority to dismiss gang allegations. (People v. Campos, supra, 196 Cal.App.4th at pp. 452-454.) Campos relied on section 186.22, subdivision (g)’s beginning phrase, “Notwithstanding any other law.” It recognized “[u]se of this term ofart expresses a legislative intent to have the specific statute contro] despite the existence of other law which might otherwise govern and declares the legislative intent to override all contrary law.” (id. at p. 452,internal citations and quotations omitted.) Thus,its inclusion in section 186.22, subdivision (g), “indicates that courts are to apply that statute-andnotany other potentially applicable statute, such as section 1385, subdivision (a)-when considering whether to exercise the powers granted by that statute.” (Ibid.) Campos found support for this interpretation in Romero wherethis Court understood the intent behind the phrase “notwithstanding any other law”in the context of the Three Strikes law to be: ‘The Three Strikes law, when applicable, takes the place of whatever law would otherwise determine defendant's sentence for the current offense. The language thus 14 eliminates potential conflicts between alternative sentencing schemes.” (Romero, supra, 13 Cal.4th at p. 524.) “By parity of reasoning, use of the phrase ‘[nJotwithstanding any other law’ in section 186.22, subdivision (g) meansthatthat statute ‘takes the place of whatever law would otherwise’ govern the exercise of trial courts' power to strike allegations or enhancements or to refuse to impose alternate penalties in gang cases.” (Campos, supra, at p. 452; Romero, supra, at p. 524.) Thus, absent section 186.22, subdivision (g), section 1385, subdivision (a), would govern, but the language eliminates any actual or potential conflicts between the laws. (Campos, supra, at pp. 452-453.) Section 186.22 expressly grants limited discretion to trial courts to Strike the additional punishmentfor section 186.22, subdivision (b), enhancements. It does so without reference to section 1385. Since the authority to strike the additional punishmentis also provided in section 1385, the statutes conflict and the notwithstanding clause directs that section 186,22, subdivision (g), governs trial court’s disposition of the ‘gang enhancement. 2. The legislative history confirms that sections 186.22, subdivision (g), and 1385, subdivision (a), conflict Here, the Court ofAppeal declined to follow the reasoning in Campos and determined the statutory language “notwithstanding any other law”in section 186.22, subdivision (g), did not provide the necessary legislative direction becauseit did not conflict with the trial court’s power to dismiss under section 1385. The Court of Appeal reasonedthe two sectionsare not in conflict because when section 186.22 was enacted, it complemented section 1385, subdivision (a), by providing the authority to strike the additional punishment, an act of discretion granted 12 years later by section 1385, subdivision (c). (Slip Opn.at pp. 7-9, 11) 15 The Court of Appeal’s review ofthe statutes Jed to the wrongresult. Sections 186.22 and 1385are in conflict and the “notwithstanding” clause in section 186,22 is revealing of the Legislature’s intent. As mentioned,in the face of ambiguity, this Court may lookto the legislative history.to assist in statutory interpretation. (People v. Scott, supra, 58 Cal.4th at p. 1421.) Here,the legislative history of sections 186.22 and 1385, subdivision (c), establish that section 186.22, subdivision (g), was enacted to divestthe court of discretion to dismiss pang enhancements. The Court of Appeal soughtto resolve the conflict between sections 186.22 and 1385 by relying onthe later enactment of section 1385, subdivision (c). However, section 1385, subdivision (c), was not added for the purpose of granting or expanding judicial discretion, but merely to clarify that a trial court’s discretion to strike the additional punishment of an enhancementwasincluded inits authority to dismiss an action under section 1385, subdivision (a), in the wake of repealing former section 1170.1, subdivision (h). (People v. Bradley (1998) 64 Cal.App.4th 386, 391, fn. 2 [“The 1997 repeal of former section 1170.1, subdivision (h) does not affect the power ofa trial judge to strike an enhancement pursuantto section 1385, subdivision (a).”]) Thus, section 186.22, subdivision (g), was not added to complement section 1385, but rather, it was the alternative judicial discretion that applied to gang enhancements. Although the repeal of former section 1170.1, subdivision (h), was neverintended to affect the existing discretion to strike the additional ‘punishment for enhancements under section 1385, subdivision (a), the Legislature foundit necessary to clarify this by adding section 1385, subdivision (c), in 2000. (Stats. 2000, ch. 689, § 3.) The California District Attorneys Association, the sponsors of the legislation, explained the purpose of enacting 1385, subdivision (c) was not to alter existing authority, but rather to clarify the court’s discretion: 16 [T]he bill adds a provision to PC 1385 to clarify and confirm that the court has the authority and discretion to strike either the enhancementitself or the additional punishment forthe © enhancementin the furtherance ofjustice. This point was expressly stated in an uncodified provision of SB 721 (as requested by the Judicial Council): ‘it is not the intent ofthe Legislatureto alter the existing authority and discretion ofthe court to strike those enhancementsor to strike the additional punishmentfor those enhancements pursuant to Section 1385 ... [Stats. 1997, ch. 750 § 9]. Because of possible misunderstandingconcerning the court's authority to strike the additional punishmentinstead of the enhancementitself (see People v. Bradley (1998) 64 Cal.4th 386, 401; People v. Sainz (1999) 74 Cal.4th 565, 569), statutory clarification is now required. This clarification may actually have a beneficialfiscal impact, because some judges who mightbe reluctantto strike the enhancementin its entirety may be more willingto strike only the punishmentfor that enhancement. (Cal. District Attorneys Assoc., Fiscal Impact, Assembly Bill No. 1808 (1999-2000 Reg.Sess.) at p. 3, excerpted from Sen. Com. On Public Safety bill file.) The Senate Committee on Public Safety Analysis of AB 1808 also ~ ‘came to the same conclusion: Penal Code section 1385 provides that a court can strike an action, or any part thereof, in the interest ofjustice, unless the Legislature clearly limits thatpower. Section 1385 includes the powerto strike the punishment that may be imposedfor a crime or an enhancement, as well as the power to completely dismiss an action, a Count or an enhancement. Thisbill clarifies that judges have power under Penal Codesection 1385to strike the punishment for an enhancement. The confusion onthis point may have derived from SB 721 (Lockyer)- Ch. 750 Statutes 1997, that eliminated a provision in Penal Code section 1170.1 that stated that trial judges could strikethe ‘punishment’ for a listed enhancement. The provision was confusing,asit truly added little or nothing to a court's power, since the court could dismiss punishment under Penal Code section 1385. The provision in Penal Code section 1170.1 may, however, have been understood by some judgesas limiting their power to strike punishment for an enhancementthat was not listed in section 17 1170.1. Arguably,this bill will clearly set out the full range of sentencingdiscretion for judges. Further, a judge can strike the additional punishmentallowed by this bill for enhancements on non-violent subordinate terms. (Sen. Com. on Public Safety, Analysis ofAssem. Bill No, 1808 (1999 2000 Reg.Sess., p. 7.) The Court ofAppeal below reasoned section 186.22, subdivision (g), wasenacted to complement section 1385, subdivision (a), by providing the’ authority to strike the additional punishment, a form ofjudicial discretion added 12 yearslater by section 1385, subdivision (c). However, the discretion to strike the additional punishment for enhancements was already included in section 1385, subdivision (a), and was codified at the timein section 1170. 1, subdivision (h), for certain enumerated enhancements. If this had beenthe intent, the Legislature could have easily added section 186,22 to former section 1170.1, subdivision (h), whichlisted the enhancements for which the court had the authority to strike the additional punishment. As an exampleofthe Legislature’s use of formersection 1 170.1, subdivision (h), in People v, Meloney (2003) 30 Cal.4th 1145, this Court considered a trial court’s authority to strike a section 12022.1 on-bail enhancement.It relied on the fact that section 12022.) was includedin former section 1170.1, subdivision (h), which granted the express authority to strike the additional punishment, andthat repeal of the section was not intended to alter the existing authority to strike under section 1385. “From this history it is apparent that the Legislature views sentence enhancements under section 12022.1 as being subjectto a trial court's discretionto strike pursuantto section 1385.” (Meloney, supra, 30 Cal.4th 1145, 1155-1156, fn. omitted, citation omitted.) Unlike the enhancement in Meloney, section 186.22 was never included in formersection 1170.1, subdivision (h), which would have 18 shownlegislative intent that section 1385 applied to section 186.22. Section 186.22 was enacted in 1988, and section 1170.1, subdivision (h), was notrepealed until 1998. During that ten-year span, section 186.22 was never addedto the list of enhancementsspecified in former section 1170.1, subdivision (h). It was wholly unnecessary for the Legislature to include a provision granting a court the general authority to strike the additional punishment on gang enhancements if the Legislature intended the court to already have this discretion. The Legislature’s decision to enact 186.22, subdivision (g), in light of these other options shows it was included for the purposeof limiting judicial authority, not to merely compensate and complementsection 1385, subdivision(a). The Legislature enacted section 186.22, subdivision (g), granting the same authority as former section 1170.1, subdivision (h), but limitingits | application to certainprovisions of section 186.22. When formersection 1170.1, subdivision (h), waslater repealed and section 1385, subdivision (c), was enacted, the legislative history of section 1385, subdivision (c), reveals that it was not added to grant and expandjudicial authority to strike the additional punishment. Instead, it was added by the Legislature to clarify for the courts what the Legislature had always intended and understood: The authority to dismiss under section 1385, subdivision (a), included the authority to strike the additional punishmentof an enhancement. The Legislature plainly stated that 1385, subdivision (c), did not increase judiciaf discretion, and was subsumedbysection 1385, subdivision (a). In fact, section 1385, subdivision (c), discretion was entirely dependent on possessing section 1385, subdivision (a), discretion. Section 186.22, subdivision (g), was enacted for a different purpose; it was not to “complement” section 1385, subdivision (a), but rather to impose restraints on judicial authority to dismiss andstrike the additional punishment of gang enhancements. 19 Appellant agrees with the Court of Appealthat there exists a significant difference between dismissing an enhancement and merely _ striking the punishment. (See Jn re Pacheco (2007) 155 Cal.App.4th1439, 1444-1445.) The fact the Legislature enacted section 186.22, subdivision (g), providing the discretion, albeit limited, that is currently recognized in section 1385, subdivision (c), further shows section 186.22, subdivision (g), was intended to be an alternative to a section 1385, subdivision (a), dismissal. Section 1385, subdivision (c)(2), specifies that it does not authorize striking the additional punishmentfor an enhancementthat could not otherwisebestricken pursuantto section 1385, subdivision (a). Thus, section 1385, subdivision (c), serves as mereclarification to the courts that section 1385, subdivision (a), also included thealternative ofstriking the punishment and did not grant additional judicial discretion. Likewise, the grant of discretion to strike the additional punishment conferred by section 186.22, subdivision (g), does not authorize the greater authority to dismiss by way of section 1385, subdivision (a). Since section 1385, subdivision (c), was enacted merelyto clarify already existing authority to dismiss under section 1385, subdivision(a), the technicality relied on by the Court of Appeal that section 186.22, subdivision (g), and section 1385, subdivision (c), do not conflict is illusory. Legislative history showsthe authority to strike the additional _ punishment undersection 1385 as an alternative was presumed, Therefore, the Legislature enacted section 186.22, subdivision (g), to provide authority distinct from section 1385 in order to limit the broad discretion to dismiss. Since the authority articulated in the phrase “the court maystrike the additional punishment for the enhancements providedin this section” is within the umbrella of section 1385, subdivision (a), in the eyes of the Legislature, the statutes overlap and are contrary to each other. Furthermore, since section 1385, subdivision (c), is completely reliant on 20 section 1385, subdivision (a), authority, they must be considered together to determineifthere is a conflict with section 186.22, subdivision (g). The Legislature provided direction to limita trial court’s discretion by only bestowing authority to “strike the additional punishmentfor the enhancement”or “refuse to impose the minimum jail sentence,” rather than allowing courts to exercise general discretion over all gang enhancements. “Under governing principles of statutory construction, ‘the expression of one thing in a statute ordinarily implies the exclusion of other things. [Citation.]’” (People vy. Guzman (2005) 35 Cal.4th 577, 588, quoting In re J.W., supra, 29 Cal.4th at p. 209.) The exclusion ofauthority to strike punishmentfor sections 186.22, subdivision (b)(4) and (b)(5),illustrates section 186.22, subdivision (g), was enacted to limit judicial authority with respect to gang enhancements. Section 186.22, subdivision(g), provides an exception to the obligatory enhanced penaltiesof section 186.22, subdivision (b), and grants the trial court authority to strike the additional punishmentfor section 186.22, subdivisions (b)(1) and (d), Section 1385 authorizes trial court to strike the enhancementallegations or the additional punishment, whereas section 186.22, subdivision (g), authorizes thetrial court to strike the additional punishment. Both statutes addressthetrial court’s authority to strike additional punishmentandare in conflict. The Court of Appeal erred whenit considered section 1385, subdivision (a), and section 1385, subdivision (c), as separate grants ofpower. Section 1385, subdivision (c), cannotbe applied unless there isa preliminary finding that section 1385, ~ subdivision (a), is applicable. Since section 1385, subdivision (c), did not ‘grant additional powers to a trial court, but clarified alternative acts of discretion, there still exists an overlapping scope, in that both statutes empower a sentencing court to strike “additional punishment” for an enhancement. Accordingly, the conflict between the statutes means the 21 “notwithstanding”clause is applicable and the authorization to strike additional punishmentfor a gang enhancementis in effect exclusive to section 186.22, subdivision(g). 3. Section 186.22, subdivision (g), is the more specific statute and in substance,the later enacted statute “The doctrine that a specific statute precludes any prosecution under a generalstatute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature hasenacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply.” (People v. Jenkins (1980) 28 Cal.3d 494, 505.) “The ‘special over the general’ rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancementstatutes.” (People v. Coronado (1995) 12 Cal.4th 145, 153-154,citing In re Shull (1994), 23 Cal.2d 745, 750 [when use of a deadly weaponis an integral part of the offense, the additional penalties prescribed by predecessor to § 12022 may not be imposed].) Section 186.22, subdivision (g), mirrors section 1385 in thatit grants the trial court authority to strike additional punishment for enhancementsin the furtherance ofjustice, and requires the reasons for the dismissal to be set forth in an order entered upon the minutes. However, key differences demonstrate section 186.22, subdivision (g), abrogates the use of section 1385. First, section 186,22, subdivision (g), applies solely to section 186.22 of the Penal Code andthe subject of the gang enhancements included therein, whereas section 1385 applies generally to criminal actions. (People v. Campos, supra, 196 Cal.App.4th at p. 453; see People v. Thomas, supra, 4 Cal.4th at p. 213 [section 1170.1, subdivision (h),is the more specific provision becauseit provides a specific powerto strike 22 specified enhancements and section 1385 providesa broad, general power to dismiss actions].) Further, the Legislature’s intent to limit judicial authority with section 186.22, subdivision (g), was not underminedbythelater enactmentof section 1385, subdivision (c), that merely clarified existing judicial authority to strike the additional punishment of enhancements. “‘[Where twostatutes deal with the same subject matter, the more recent enactment prevails as the latest expression ofthelegislative will.’” (Peoplev. | Romero, supra, 13 Cal.4th at p. 526, quoting 2B Sutherland, Statutory Construction (Sth ed. 1992) § 51.02, p. 122, fn. omitted; City ofPetaluma vy. ‘Pac. Tel. & Tel. Co. (1955) 44 Cal. 2d 284, 288.) Section 1385 was enacted in 1872 and section 186.22 in 1988. Although section 1385, subdivision (c), was addedafter section 186.22, as demonstrated by the legislative history, it merely clarified judicial power already provided for in section 1385, subdivision (a). Since section 1385, ‘subdivision (c), did not substantively changejudicial discretion to dismiss or strike the additional punishment of an enhancement, its enactment was not an expressionoflegislative intent implicating the distinct authority providedin section 186.22, subdivision (g). In substance, section 186.22 wasthe later enacted statute and applies to striking the punishment for gang enhancements. E. Limited Judicial Discretion Furthers the Statutory. Scheme, Harmonizes the Statutes, and Prevents Absurd ' Results The Legislature’s intent in enacting the STEP Act was “to seek the ‘eradication of criminal activity by street gangs by focusing upon patternsof criminal gang activity and uponthe organized natureof street gangs, which together, are the chief sourceof terror created by street gangs.” (§ 186.21.) With manyoptions beforeit, the Legislature chose to include a subdivision 23 that directly addressed a court’s discretion to strike the enhancement, specifying it maystrike the additional punishment, rather than remaining silent on the issue or including section 186.22 in a broaderstatute such as former section 1170.1, subdivision (h). The Legislature acted with purpose to divest judicial discretion on the matter. To interpret section 186.22, subdivision (g), as subservient to broaderdiscretion stripsit of its purpose. In essence, the exception is swallowedby the rule. The Legislature strategically enacted section 186.22, subdivision (g), as a means to prevent trial courts from dismissing gang enhancementsin order to preserve findings, but allow the courts to maintain the discretion to ameliorate the immediate impact on the sentence in the furtherance ofJustice. The difference between dismissing an enhancementallegation and striking the resulting sentence from an enhancementthat has been found true, can leadto significant differences in sentencing, criminal records, and future prosecution. Removing section 1385 discretion from the courts will _ require findings on gang enhancements be made. If the enhancementis not proven true, exercise of discretion is not an issue. While if the gang . enhancementis proven,then thetrial court still has discretion to strike the | additional punishmentand not includethe term in the overall sentence. However, the true finding of the gang enhancement would remain,andthis finding inures to the benefit of the prosecution to prove future gangactivity and allows future sentencing discretion in the wake of a remand. The significance is apparent when comparing the dismissal of a gang enhancement that has yet to be provento that of a felony prior allegation. For instance, when a court strikes a prior felony allegation under section 1385, it “is not the equivalent of a determination that defendant did notin fact suffer the conviction” and “does not wipe out such prior convictions or prevent them from being considered in connection withlater convictions.” (in re Varnell, supra, 30 Cal.4th at p. 1138, quoting People v. Burke, supra, 24 47 Cal.2d at p. 51 and People v. Romero, supra, 13 Cal,4th at p..508.) In those circumstances, the dismissal orstriking of the allegation only affects the current sentence and does not implicate future prosecutions. Section: 186,22, subdivision (g), serves the same purpose of allowing trial court to strike the allegations for sentencing purposes, and at the sametime,restricts the trial in a manner that mandates gang findings are made and preserved. Section 186.22, subdivision (b)(1), requires the prosecution to prove a ! crime was “committed for the benefit of, at the direction of, or in association with any criminalstreet gang, with the specific intent to ‘promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd, (6)(1.)) This includes proving the gang is an ongoing association, that one of its primary activities includes one or more ofthe criminal acts enumerated section 186.22, and its members “either - individually or collectively have engaged in a ‘pattern of criminal gang ‘activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (§ 186.22, subds. (e) & (f); People vy. . Hernandez (2004) 33 Cal.4th 1040, 1047; People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.) Evidence ofpast or present conduct by gang members involving the commission of one or more ofthe statutorily enumerated crimesis relevant and admissible in determining and proving a gang’s pattern of criminal conduct. (People v. Sengpadychith (2001) 26 Cal4th 316, 323.) Moreover, gang expert testimony based on investigations and crimes committed by gang membersis also imperative to establish a gang’s primary activities. (/d. at p. 324; Gardeley, supra, at p. 620.) Prior convictions are indispensable to prove gang enhancements. In People v. Tran (2011) 51 Cal.4th 1040, for instance, this Court acknowledged that evidenceof prior convictions may be highly probative by providing direct 25 evidence of a predicate offense, that the defendant actively participated in a gang, and that the defendant knew the gang engagedin a pattern of criminal gangactivity. (Id. at pp. 1048-1050.) _ Theentire statutory scheme is grounded on establishing patterns of criminal activity to prove gang existence and involvement. The pervasive criminal nature of gangs is shown largely by prior convictions and true findings. If the Legislature intended the STEP Act to have an impact on gangs, then it is only reasonable that section 186.22, subdivision (g), was enactedto curtail the trial courts’ discretion to dismiss under section 1385 in order to effectuate this purpose. Permitting courtsto strike gang allegations outright would hamperthe prosecution’s ability to prove the gang enhancements in future cases and nullify the intended purpose and results of the STEP Act. Here,thetrial court abused its discretion whenit struck the gang enhancements over the prosecutor’s objection and then allowed Fuentes to plea to the underlying charges. If the prosecution was not willing to | dismiss the gang enhancements as a condition of the plea agreement, then the trial court should have required Fuentes to admit the allegations, and then the court could have stricken the additional punishment with the discretion provided in section 186.22, subdivision (g). Or, in the ‘alternative,ifthe trial court disagreed with the prosecutor’s decision to charge the gang enhancements,it had the option of refusing to approve the plea agreement. However, the prosecution was entitled to pursue the gang enhancements and receive a finding on them. The Legislature hasprovided clear direction that in the limited context of gang allegations thetrial court ‘does not have the discretion to dismiss under section 1385. 26 CONCLUSION The enactmentof section 186.22, subdivision (g), is clear legislative direction that section 1385 does not apply to gang enhancements. If section ‘186.22, subdivision (g), was enacted for a purpose, and it must be assumed the Legislature does not perform idle acts, then it was tolimit judicial discretion striking gang enhancementsand additional punishment. The intent behind section 186.22, subdivision (g), is plainly articulated in the language ofthe statute, and further supported by policy considerations. ‘The subsequent addition of section 1385, subdivision (c), had no impact on this decreed limited discretion, and should not open the door to broader discretion in the limited circumstance of a gang enhancement. If section 1385 is not precluded by section 186.22, subdivision (g), then section f/f WI ‘ff 27 186.22, subdivision (g), is utterly useless. For these reasons, appellant respectfully requests that the judgmentofthe Court ofAppeal be reversed. Dated: December 16, 2014 KKC:sam $D2014809185 80987561.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General STEVE OETTING Supervising Deputy Attorney General LISE §. JACOBSON Deputy Attorney General KRISTEN KINNAIRD CHENELIA Deputy Attorney General Attorneysfor Appellant 28 CERTIFICATE OF COMPLIANCE | I certify that the attached APPELLANT’S OPENING BRIEF ON THE MERITSuses a 13 point Times NewRomanfont and contains 7969 words. Dated: December 16, 2014 KAMALA D. HARRIS Attorney General of California w KRISTEN KINNAIRD CHENELIA Deputy Attorney General Attorneysfor Appellant KKC:sam $D2014809185 80987561 .doc OPINION Filed 4/30/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT | DIVISION THREE THE PEOPLE, Plaintiff and Appellant, G048563 Vv. (Super. Ct. No. 13NF0928) ALEXIS ALEJANDRO FUENTES, OPINION Defendant and Respondent. Appeal from an order of the Superior Court of Orange County, Nicholas S. Thompson, Judge. Affirmed and remanded with directions. Request for judicial notice, Denied. 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. The trial court did not, however, state its reasons for dismissing the enhancementallegation in an order entered in the minutes, as required by section 1385(a). We therefore remand to permitthe trial court to comply with section 1385(a), In all other respects, the orderis affirmed. BACKGROUND By complaintfiled 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 | enhancementpursuant 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 ofthat 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 ownerofit and without consent of the owner. I was also in possession of such vehicle.” Overthe District Attorney’s objection, the trial court granted a defense motion to dismiss, pursuant to section 1385(a), the enhancementalleged 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 movedto 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 ofthe enhancementalleged under section 186,22(b). The order dismissing the enhancementis appealable under section 1238, subdivision (a)(1) and (8). an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.” The word “action”in section 1385(a) means “‘individual charges and allegations in a criminal action.” (dn re Varnell (2003) 30 Cal.4th 1132, 1137.) The authority to dismiss an action under section 1385(a) includes the authority to strike factual allegations relevant to sentencing. (Romero, supra, 13 Cal.4th at p. 504.) The Legislature may eliminate a court’s powerundersection 1385(a); however,“we will not interpret a statute as eliminating courts’ power under section 1385 ‘absent a clearlegislative direction to the contrary.’”” (Romero, supra, 13 Cal.4th at p. 518; see People v. Fritz (1985) 40 Cal.3d 227, 230 [requiring “clear language eliminating a trial court’s section 1385 authority whenever such eliminationis intended”].) The Legislature need not expressly refer to section 1385(a) to provide such clear legislative direction. (Romero, supra, at p. 518.) B. The Meaning of “Notwithstanding Any Other Law”in Section 186.22(g) Section 186.22(g) states: “Notwithstanding any other law, the court may strike the additional punishmentfor the enhancements providedin this section or refuse to impose the minimumjail sentence for misdemeanors in an unusual case where the interests ofjustice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests ofjustice would best be served by that disposition.” The District Attorney argues the phrase “[n]otwithstanding any other Jaw”is the Legislature’s clear direction to eliminate the trial court’s power under section 1385(a) to dismiss or strike enhancementallegations made pursuantto section 186.22(b). | The word “notwithstanding” is defined as “without prevention or obstruction from or by : in spite of (Webster’s 3d New Internat. Dict, (2002) p. 1545, col. 3) or, more simply, as “despite” (Merriam-Webster’s Collegiate Dict. (11th ed. 2004) This interpretation is consistent with other statutory provisions limiting the trial court’s power under section 1385(a). When the Legislature has intendedto eliminate the trial court’s section 1385(a) powerto dismiss orstrike an enhancement allegation, it has donesodirectly and by using the word “notwithstanding”to juxtapose inconsistent propositions. Examples are: | I. Section 667.61, subdivision (g): “Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person whois subject to punishment underthis section.” 2. Section 667.71, subdivision(d): “Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any prior conviction specified in subdivision (c) for any person whois subject to punishment under this section.” 3, Section 12022.5, subdivision (c): “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation underthis section or a finding bringing a person within the provisions ofthis section.” 4, Section 12022.53, subdivision (h): “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation underthis section or a finding bringing a person within the provisions ofthis section.” In each of these examples, the statutory provision prohibiting thetrial court from dismissing or striking the enhancement allegation is contrary to, in conflict with, or inconsistent with the court’s power granted by section 1385(a). C. Section 186.22(g) Is Not Contrary to, in Conflict with, or Inconsistent with Section 1385(a), Is section 186.22(g) contrary to, in conflict with, or inconsistent with section 1385(a)? No. Section 1385(a) gives the trial court power to dismiss orstrike Assembly Bill No. 1808 (1999-2000 Reg. Sess.), (Historical and Statutory Notes, 51A pt. 1 West’s Ann, Pen, Code (2011 ed.) foll. § 1385, p. 287.) Section 186.22(g) was enacted as part ofthe original legislation in 1989 andinitially was codifiedas section 186.22, subdivision (d). (Stats. 1989, ch. 930, § 5.1, pp. 3253-3254; 47 West’s Ann. Pen, Code (1999 ed.) amend.history foll. § 186.22, p. 465.) Thus, when section 186.22 was enacted, section 1385 did not include subdivision (c) and did not give the trial court authority to strike the additional punishmentfor the enhancement. Section 186.22(g)(initially codified as section 186.22, subdivision (d)) complemented, rather than displaced, section 1385(a) by granting the trial court such additional power. E. People v. Campos The District Attorney urges us to follow People v. Campos (2011) 196 | Cal.App.4th 438, 450 (Campos), in which the Court of Appeal held that section 1385(a) did not authorizethetrial courtto refuse to imposethe alternate penalty imposed by section 186,.22(b)(5). Campos was not cited to the trial court in this case. Thetrial court in Campos sentenced the defendant to a prison term of seven years to life on an attempted murder count, struck various enhancementallegations, and stayed execution of the punishment prescribed by section 186.22(b)(5). (Campos, supra, 196 Cal.App.4th at pp. 446-447.) The Court ofAppeal concluded the sentence on one of the attempted murder counts was unauthorized. (id. at p. 447.) Becausethe jury had found gangallegations under section 186.22(b) to betrue, section 186.22(b)(5) applied and imposed a minimum sentence of 15 years before consideration of parole. (Campos, supra, at p. 447.) - The defendantin Campos argued the trial court had discretion under sections 186.22(g) and 1385(a) to dismissorstrike the gang allegations and refuse to impose the alternate punishmentprescribed by section 186.22(b)(5). (Campos, supra, Appeal”]), and fundamentally differ from Campos in its interpretation of the word | “notwithstanding.” The Court of Appeal in Campos interpreted “notwithstanding,” in effect, as a word of preemption;thatis, the phrase “[n]otwithstanding any other law”in section 186.22(g) means courts are to apply that statute to the exclusionofall other potentially applicable statutes. But California Supreme Court authority defines - “notwithstanding” as meaninga statute prevails over conflicting, contrary, or inconsistent law, not all law. In Arias v. Superior Court, supra, 46 Cal.4th at page 983, the Supreme Court stated: “Thus, by virtue of [Labor Code section 2699,] subdivision (a)’s ‘notwithstanding’ clause, only those provisions of law that conflict with the act’s provisions-not, as defendants contend, every provision of law-are inapplicable to actions brought under the act.” (Italics added; see Zn re Greg F., supra, 55 Cal.4th at p. 406 [“contrary” law]; Romero, supra, 13 Cal.4th at p. 524 [“inconsistent” law].) This interpretation is in keeping with the standard definition of “notwithstanding” to mean “despite” and with its use in otherstatutes limiting the trial court’s power under section 1385(a). Wealso part ways with the Campos court in its conclusion that section 186.22(g) would be redundantor unnecessary if section 1385(a) gave thetrial court powerto dismissor strike gang enhancementallegations. As we have explained, there is a difference between dismissing orstriking the enhancement allegation and striking the additional punishmentfor that allegation. The grant ofpower under section 1385(a) to dismiss or strike the enhancementallegation would not also grant the trial court powerto strike the additional punishment. This is shown by the fact section 1385, subdivision (c)(1) was enacted in 2000, over 125 years after the enactment of section 1385, to grant the trial courts such power. Section 186.22(g) is not redundant because it was enacted before section 1385, subdivision (c)(1). 11 DISPOSITION Becausethetrial court failed to state its reasons for dismissing the gang enhancementallegation in a written orderentered upon the minutes, we remandto give the trial court the opportunity to comply with section 1385(a). In all other respects, the order is affirmed. FYBEL,J. WE CONCUR: RYLAARSDAM,ACTINGP.J. IKOLA,J. 13 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People vy. Fuentes No. | 8219109 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. | am familiar with the business practice at the Office ofthe Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On December 16, 2014, I served the attached APPELLANT’S OPENING BRIEF ON THE MERITSbyplacinga true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: . Miles David Jessup, Esq. Orange County Public Defender 901 West Civic Center Drive, Suite 200 Santa Ana, CA 92703-2352 Attorney for Respondent (2 Copies) I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on December 16, 2014, at San Diego, California. 8. McBrearty ay . Tn ef Declarant Signature $D2014809185 80988699.doc
