People v. Staples

Opinion

WOOLPERT, J. Following a jury trial in Kern County Superior Court, defendant was found guilty of possessing a deadly weapon (a razor) while confined in state prison (Pen. Code, § 4502)1 and assault with a deadly weapon while serving a life sentence (§ 4500). He subsequently admitted having a prior felony conviction (murder), within the meaning of section 667.

Probation was denied and defendant was sentenced as follows: for violation of section 4500, life without the possibility of parole for nine years; for violation of section 4502, four years which was stayed pursuant to section 654; for the section 667 prior conviction, five years, to be served consecutive to the 25-years-to-life term he was serving for the prior. The total term imposed was therefore 39 years to life. He timely appeals.

[274]I.-IV.*

V. Section 1385 Discretion

Defendant argues the court erred when it interpreted section 4500 to preclude its exercise of discretion under section 1385. The court was of the opinion the Legislature had not provided for sentencing discretion if section 4500 had been violated.

At the time the crimes in the present case were committed, section 4500 provided, in pertinent part: “Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole. The penalty shall be determined pursuant to the provisions of Sections 190.3 and 190.4; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, the punishment shall be imprisonment in the state prison for life without the possibility of parole for nine years.” (Italics added.)

Also at that time, section 1385 provided: “The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons of 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.” The section was subsequently amended, effective May 6, 1986, in respects not pertinent to this issue.