People v. BONNETTA

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1317

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1318 OPINION

More than a century ago, Justice Holmes wrote: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." (Holmes, The Path of the Law (1897) 10 Harv. L.Rev. 457, 469.) Although "revolting" may be too strong a word, and the history of the law involved here does not trace back to the Middle Ages, we publish this opinion to draw attention to a statute whose language and application may be outdated. Since its enactment in 1872, Penal Code section 1385 (section 1385) has specified that dismissals of criminal prosecutions "must be set forth in an order entered upon the minutes." This language has been construed and applied by our Supreme Court to hold that no matter how conscientiously a trial court may state its reasons on the pages of the reporter's transcript, the quoted language makes that part of an appellate record superfluous: Only if the same information is memorialized in "an order entered upon the minutes" can an automatic reversal be avoided. However sound the reasons for imposing this requirement in 1872, they are no longer compelling. *Page 1319 Here, the People appeal from orders striking the additional punishment terms in this otherwise unexceptional drug prosecution. Because we are bound to apply unambiguous precedent from our Supreme Court, we are compelled to reverse even though the record before us leaves no doubt as to why the trial court ruled as it did. Moreover, that record would ordinarily be more than sufficient to conduct a standard harmless error analysis, yet we are forbidden to do so. The upshot is what appears a reversal for no better reason than that the trial court can put in different form a ruling already intelligible and known to the parties and this court. The illogic of such a pointless expenditure of time and money may warrant reexamination by the Supreme Court.

BACKGROUND On the evening of July 8, 2004, a deputy sheriff made a traffic stop of a red Camaro on a highway in Contra Costa County. Defendant Thomas Bonnetta was a passenger in the car. Behind Bonnetta's seat the deputy found two cans of lye, which the deputy knew could be used in the illegal manufacture of methamphetamine. The deputy learned that Bonnetta was on parole, and thus subject to a condition of parole authorizing a search of his residence. The deputy took Bonnetta to the house where Bonnetta lived. A cursory search of the premises uncovered baggies containing a white crystalline substance, and more lye in Bonnetta's bedroom. The deputy also found in Bonnetta's bedroom a five-gallon jug containing what the deputy termed "an unknown substance." Believing that methamphetamine was being manufactured at the site, the deputy summoned assistance from more experienced officers. Specialists conducted a more thorough search.1 They found the equipment and materials showing an ongoing operation for the manufacture and sale of methamphetamine. One of the officers asked Bonnetta, after appropriate Miranda (Miranda v. Arizona (1996) 384 U.S. 436 [16 L. Ed.2d 694, 86 S.Ct. 1602]) warnings, for "his side of the story." Bonnetta replied that he was "pulling pills to make money." The officer explained what this meant: "`Pulling pills' is when you take the pseudoephredrine out from over-the-counter pill medication to use in the manufacturing process of methamphetamine." The "forensic toxicologist" who analyzed the five-gallon jug detected "the presence of methamphetamine." *Page 1320 The above information is taken from the transcript of the preliminary examination, which began on October 27 and concluded on October 31, 2005. On November 10, 2005, the District Attorney of Contra Costa County filed an information by which Bonnetta and defendant Michael Claude Wilen were jointly charged with four counts: (1) manufacturing methamphetamine, in violation of Health and Safety Code section 11379.6, subdivision (a); (2) possessing the components to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (c)(1); (3) possessing specified chemicals with the intent to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (g); and (4) possessing methamphetamine for sale, in violation of Health and Safety Code section11378. Defendant Wilen alone was also charged with additional counts of possessing the components to manufacture methamphetamine, in violation of Health and Safety Code section 11383, former subdivision (c)(1), and with possession of "laboratory glassware or apparatus" with the intent to manufacture methamphetamine, in violation of Health and Safety Code section 11104.5. The information also set out numerous enhancement allegations. The manufacturing count was accompanied by an allegation that, "pursuant to Health and Safety Code section 11379.8[, subdivision] (a)(1) . . . the substance in the above offense exceeded three gallons of liquid by volume and one pound of solid substance by weight." It was further alleged, "pursuant to Health and Safety Code section 11370.2[, subdivision] (c)," that defendant Bonnetta had suffered prior drug-related convictions in 1978, 1987 (twice), 1998, and 2000. Both 1987 offenses, those in 1998 and 2000, and a 1994 conviction for being a past convicted felon in possession of a firearm (Pen. Code, § 12021) were also alleged to be felonies for which Bonnetta served a term in prison within the meaning of Penal Code section 667.5, subdivision (b). Finally, it was alleged in the information that Wilen had seven prior felony convictions for which he served a term in prison within the meaning of Penal Code section 667.5, subdivision (b); several of those convictions were also drug related, and thus also within Health and Safety Code section 11370.2, subdivision (c). In February 2006, 2 Wilen moved to quash the search warrant (see fn. 1, ante) and to suppress all evidence obtained in the ensuing search. The motion was heard and denied that same month. *Page 1321 The next event occurred in July, when the cause went before the Honorable Theresa Canepa, possibly for a readiness conference. Just what occurred is partly a matter of conjecture, because the proceedings were not reported. However, it appears undisputed that Judge Canepa indicated that she would sentence Wilen to no more than six years eight months imprisonment if he entered pleas of guilty to all the charges and admitted the enhancements, and that Bonnetta would get no more than eight years. Defendants promptly executed waiver and plea forms signifying their acceptance of the offers.3 We do have a transcript for a hearing held on July 26, at which the prosecutor "object[ed] to the Court's sentencing option if the defendants were going to accept and enter a change of plea." The prosecutor stated "it's the People's position that the Court can't get to the numbers it got to without striking the variously charged enhancements. And in order to strike all of those enhancements, the People feel that the Court would need to make certain findings for the record that, based on the facts and circumstances of this case, the Court could not make without abusing its discretion, [ ¶] And so under the authority of Penal Code section 1385 and Health and Safety Code section 11379.8 (d), and the other enhancements that would have to be stricken, the People would object. . . ." Associate counsel for Bonnetta advised the court that "Mr. Bonnetta wants to accept the offer the Court made him." But because Bonnetta's lead counsel was not present, the court put the matter over to August 14, the trial date. When the court told counsel for Wilen that Wilen "can plead straight today to the sheet," counsel replied, "We would like to do that." However, the court put Wilen's matter over for two days, stating that "depending on what I review from the cases and argument from both sides I'll either sentence him to what I said I was going to sentence him to, or I'll allow him to withdraw his plea." Two days later, on July 28, the prosecutor provided the court with Wilen's Penal Code section 969b "packet" of his criminal history and, based on it and the California Rules of Court governing sentencing, argued against the court's indicated sentence for Wilen. The court responded: "It is absolutely clear as crystal that the trial judge's sentencing discretion cannot be limited by any requirement of prosecutorial consent. . . . [¶] . . . [¶] When there's a plea to the sheet, the court can make a disposition as it sees fit." After hearing *Page 1322 both sides, the court stated: "I have the plea form [see fn. 3, ante] here, and I am going to take the plea. [¶] . . . [¶] Now, for the record the court has offered an indicated sentence, if Mr. Wilen pled as charged, of six years, eight months. The indicated sentence apparently has been accepted." The court then accepted Wilen's pleas of no contest to all of the charges, and his admissions of all of the enhancement allegations. Except for the arguments, this process was essentially repeated on August 14, when Bonnetta entered pleas of no contest to all of the charges and admitted all of the enhancements alleged against him. By that time, the prosecutor had filed a "sentencing brief urging the court to impose a total sentence of 17 years for Bonnetta. Defendants were sentenced on September 15.4 Bonnetta's counsel spelled out the "substantial reasons why . . . the court's offer was eminently fair." The district attorney reiterated that "the People continue to submit it would not be in the interest of justice to strike the priors," and that "17 years is the most appropriate sentence for defendant Bonnetta." Judge Canepa then pronounced sentence as follows: "[A]s to count 1, which is the violation of Health and Safety Code section 11379.6 (a), the court imposes the midterm of five years. "The court will strike the quantity enhancement pursuant to 11379.8 (a)(1). . . . [¶] The issue [is] whether the substance itself exceeds three gallons of liquid by volume and one pound of solid substance by weight: I've reviewed the preliminary hearing testimony, and I do not find that beyond a reasonable doubt that that was something that could have been proven at trial. . . . So I am striking the additional punishment, pursuant to 1385, in that matter. "As to count 2, the violation of Health and Safety Code section 11383 (c)(1), the court imposes the midterm of four years to run concurrent with the term imposed in count 1. "As to count 3, the violation of Health and Safety Code section 11383 (g), the court imposes the midterm of three years concurrent with the term imposed in count 1. *Page 1323 "And as to those two counts, there's an issue of whether Penal Code section 654 would come into play as to whether the court could impose consecutive punishment as well. "As to count 4, the violation of Health and Safety Code section 11378, the court imposes the midterm of two years to run concurrent with the term imposed in count 1. [ ¶] . . . [¶] "So the enhancement pursuant to section 11370.2 (c), which is dated January 26, 1978, as to that enhancement, the court will strike the punishment of three years under Penal Code section 1385 (c), due to the age and the remoteness of the conviction, as it is more than 28 years old. "As to the enhancement pursuant to 11370.2(c), dated May 28, 1987, the court will strike the punishment of three years under Penal Code section1385(c), due to the age and remoteness of the conviction, as it is 19 years old. "As to the enhancement pursuant to section 11370.2 (c), dated January 5, 1987, the court will strike the punishment of three years, pursuant to Penal Code section 1385 (c), based on the age and the remoteness of the conviction, as it is 19 years old. "As to the enhancement pursuant to section 11370.2 (c), dated December 15, 1998, the court will strike the punishment of three years under Penal Code section 1385 (c) in the interest of justice and the need to achieve parity in sentencing to facilitate the speedy resolution of this matter. "As to the enhancement pursuant to Health and Safety Code section 11370.2 (c), dated March 20, 2000, the court will impose three years to run consecutive to the term imposed in count 1 for a total aggregate term of eight years in the state prison. "As to the remaining prior convictions alleged pursuant to 667.5 (b), which are one-year priors, the court will strike those prior convictions for the purposes of sentencing . . . pursuant to Penal Code section 1385 in the interest of justice." The court then turned to Wilen. His counsel simply asked Judge Canepa to "incorporate" the arguments made when Wilen changed his pleas, and the "many reasons . . . why I thought that the court could come up with that figure," namely, the six years eight months of the indicated sentence. The prosecutor discussed the factors addressed in her sentencing brief, and *Page 1324 concluded that "the People continue to urge the Court that a 17-year sentence is the most appropriate disposition here." (See fn. 4, ante.) Judge Canepa prefaced the imposition of sentence by remarking, "Upon my review of the preliminary hearing testimony and the other documents that were submitted, I find that his culpability in this offense is lesser than that of Mr. Bonnetta's. [¶] There was manufacturing equipment not located in his locked bedroom. He was living with his girlfriend at the time of the offense, although he had had a bedroom in Mr. Bonnetta's house for five months, while Mr. Bonnetta had lived in the house for two years. The house belonged to Mr. Bonnetta. His criminal history, while extensive, is less extensive than Mr. Bonnetta's." Wilen's sentence was then pronounced: "So as to count 1, the felony violation of Health and Safety Code violation 11379.6 (a), the court is imposing the midterm of five years. "As to the enhancement pursuant to Health and Safety Code section 11379.8 (a)(1), as to the weight enhancement, the court will strike it for purposes of sentencing pursuant to Penal Code section 1385 (c). And again, it is for the same reasons as stated for Mr. Bonnetta, that there was an issue as to whether or not the actual quantity was as alleged, [¶] And in terms of imposing the additional punishment, it was not established, to this court's belief, that it was such as to enhance the sentence by the additional time. And so therefore I will strike that punishment. "As to count 2, the violation of Health and Safety Code section 11383 (c)(1), the court imposes the midterm of four years to run concurrent with the term imposed in count 1. There's an issue of Penal Code section654, as well, regarding consecutive sentence in this matter. "As to Count 3, for the felony violation of Health and Safety Code section 11383 (g), the court imposes the midterm of three years to run concurrent with the term imposed in count 1. Once again, there is an issue of Penal Code section 654 as to a consecutive sentence. "As to count 4, the felony violation of Health and Safety Code section11378, the court is going to impose one-third the midterm of two years for eight months to be served consecutive to the sentence imposed in count 1. "As to count 5, the felony violation of Health and Safety Code section11383 (c)(1), the court is imposing the midterm of four years to run concurrent with the term imposed in count 1. "As to count 6, which is the misdemeanor violation of Health and Safety Code section 11104.5, the court is going to impose credit for the time that he's already served as to that offense. *Page 1325 "As to the enhancement pursuant to Health and Safety Code section 11370.2 (c), dated September 16, 1988, the court is going to strike the punishment of three years under Penal Code section 1385 (c), due to the age and remoteness of this conviction, which is 18 years old. "As to the conviction alleged pursuant to Penal Code section 667.5 (b), dated June 18, 1996, the court will impose one year to run consecutive to the term imposed in count 1. "And as to the remainder of the 667.5 (b) prior convictions, the one-year sentence on each will be stricken for purposes of sentencing pursuant to 1385 (c), based on the remoteness of those prior convictions which date from 1982 to 1992, for a total aggregate term of six years, eight months in the state prison." The district attorney filed a timely notice of appeal.5 DISCUSSION I One preliminary matter requires mention. The manufacturing charge of count 1 alleged against both Bonnetta and Wilen was accompanied by what is commonly known as a "weight allegation" under Health and Safety Code section 11379.8, which authorizes additional imprisonment of up to 15 years depending upon the amount of illegal substance involved. Here, it was alleged that defendants came within subdivision (a)(1) of section 11379.8, which provides in pertinent part: "(a) Any person convicted of a violation of subdivision (a) of section 11379.6 . . . shall receive an additional term as follows: [¶] (1) Where the substance exceeds three gallons of liquid by volume or one pound of solid substances by weight, the person shall receive an additional term of three years." *Page 1326 The statute also provides a means where the additional prison time is not obligatory: "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section 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." (Health Saf. Code, § 11379.8, subd. (d).) But it was another statute that was invoked by the trial court here, which statute also authorizes a sentencing court to strike enhancement prison terms — section 1385. The relevant language of section 1385 is: "(a) The judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. . . . [¶] . . . [¶] (c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." At first glance, it appears that the two statutes have an overlapping scope, in that both empower a sentencing court to strike "additional punishment" for an enhancement. However, the district attorney contends that there is no authority shared by the two statutes, and argues that Judge Canepa "erred in striking the quantity enhancement pursuant to Pen. Code § 1385, subd. (c) because Health Safety Code § 11379.8, subd. (d) specifically sets forth the conditions under which it may be stricken." According to the district attorney, the authorization to strike additional punishment for a weight enhancement is in effect exclusive to Health and Safety Code section 11379.8, in claimed support of which he cites People v. Meloney (2003) 30 Cal.4th 1145 [135 Cal.Rptr.2d 602, 70 P.3d 1023] (Meloney). We disagree. Meloney not only fails to validate the district attorney's reasoning, it actually refutes it. The general issue in Meloney was the enhancement of Penal Code section12022.1, which specifies additional punishment for a defendant who commits an offense while on bail pending trial for another crime. The court's discussion of why trial courts have authority under section 1385 to strike an on-bail enhancement term is equally applicable here: "It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to `strike the additional punishment for that enhancement in the furtherance of justice.' As we held in People v. Thomas (1992)4 Cal.4th 206 [14 Cal.Rptr.2d 174, 841 P.2d 159], `absent a clear legislative direction to the contrary, a trial court retains its authority under section 1385 to strike an enhancement.' . . . *Page 1327 "Indeed, the Legislature not only has failed to evince a clear intent that section 1385 should not apply to enhancements imposed under section 12022.1, it clearly has demonstrated the opposite intent. Until 1998, Penal Code, section 1170.1, subdivision (h), provided: `Notwithstanding any other law, the court may strike the additional punishment for the enhancements provided in . . . Sections 667.15, 667.5, 667.8, 667.85, 12022, 12022.1, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9, 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.' [Citation.] "The Legislature repealed this subdivision of the Penal Code effective January 1, 1998, stating at the time: `In repealing subdivision (h) of Section 1170.1, which permitted the court to strike the punishment for certain listed enhancements, it is not the intent of the Legislature to alter the existing authority and discretion of the court to strike those enhancements . . . pursuant to Section 1385, except insofar as that authority is limited by other provisions of the law.' [Citation.] From this history it is apparent that the Legislature views sentence enhancements under section 12022.1 as being subject to a trial court's discretion to strike pursuant to section 1385." (Meloney, supra,30 Cal.4th 1145, 1155-1156, fn. omitted, citation omitted, underscoring added.) This reasoning is no less applicable here. We have underscored those statutes which authorized the enhancements the trial court declined to impose. They too would thus be covered by the Legislature's intention not to restrict the existing scope of trial court power under section 1385 to strike enhancement punishment terms. Most importantly, by including Health and Safety Code section 11379.8 in the statutes authorizing enhancement punishment terms, the Legislature clearly accepted that section 1385 could be used to strike a term otherwise mandated by Health and Safety Code section 11379.8. The district attorney is therefore mistaken in viewing the two statutes as uncoupled, and in treating Health and Safety Code section11379.8 as the exclusive authority for striking the weight allegation. Accordingly, there was no error in Judge Canepa using the power granted by section 1385 as the sole basis for striking all of the enhanced punishment terms.6 We now consider *Page 1328 whether the district attorney has a valid basis for arguing that power was not correctly invoked and employed.