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

        v.                                            (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.
                                      INTRODUCTION
               The trial court dismissed an enhancement alleged under Penal Code
                                1
section 186.22, subdivision (b) (section 186.22(b)) against defendant Alexis Alejandro
Fuentes. The court ordered the enhancement dismissed pursuant to section 1385,
subdivision (a) (section 1385(a)), which grants a trial court power to dismiss or strike an
action, including specific charges and enhancement allegations. The Orange County
District Attorney (the District Attorney) challenges the order dismissing the enhancement
on the ground that under section 186.22, subdivision (g) (section 186.22(g)), the trial
court had the power only to strike the additional punishment for the enhancement.
               Section 186.22(g) gives the trial court the power, “[n]otwithstanding any
other law,” to strike the additional punishment for an enhancement alleged under
section 186.22(b). The issue presented by this case is whether, by enacting section
186.22(g), the Legislature eliminated the trial court’s power under section 1385(a) to
dismiss or strike an enhancement alleged under section 186.22(b).
               We conclude the enactment of section 186.22(g) did not eliminate the trial
court’s power to dismiss or strike an enhancement alleged under section 186.22(b). The
phrase “[n]otwithstanding any other law” in section 186.22(g) means that section governs
over all conflicting, contrary, or inconsistent law. The power to dismiss or strike an
enhancement alleged under section 186.22(b) is not in conflict with, contrary to, or
inconsistent with the power to strike the additional punishment under section 186.22(g).
An enhancement allegation is different from the additional punishment imposed when the
allegation is found to be true. Thus, the phrase “[n]otwithstanding any other law” in
section 186.22(g) does not constitute a clear direction that the Legislature intended to
eliminate a trial court’s power under section 1385(a) to dismiss or strike an enhancement
alleged pursuant to section 186.22(b).

 1
     All code references are to the Penal Code unless otherwise indicated.

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              The trial court did not, however, state its reasons for dismissing the
enhancement allegation in an order entered in the minutes, as required by
section 1385(a). We therefore remand to permit the trial court to comply with
section 1385(a). In all other respects, the order is affirmed.
                                        BACKGROUND
              By complaint filed 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
enhancement pursuant 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 of that 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 owner of it and without consent of the owner. I was also
in possession of such vehicle.”
              Over the District Attorney’s objection, the trial court granted a defense
motion to dismiss, pursuant to section 1385(a), the enhancement alleged 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 moved to
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 of the
enhancement alleged under section 186.22(b). The order dismissing the enhancement is
appealable under section 1238, subdivision (a)(1) and (8).

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                                        DISCUSSION
                                              I.
                                    Standard of Review
              A trial court’s decision to dismiss or strike an allegation under
section 1385(a) is reviewed under the abuse of discretion standard. (People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).) In applying the abuse of
discretion standard, we determine whether the trial court’s findings of fact are supported
by substantial evidence. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) We
review conclusions of law de novo (id. at pp. 711-712) and “a disposition that rests on an
error of law constitutes an abuse of discretion” (In re Charlisse C. (2008) 45 Cal.4th 145,
159). The trial court’s application of the law to the facts “is reversible only if arbitrary
and capricious.” (Haraguchi v. Superior Court, supra, at p. 712.)
              Although the decision whether to dismiss or strike an enhancement
allegation is discretionary, the issue presented here—whether the trial court had the
power under section 1385(a) to dismiss the enhancement allegation—is purely legal. The
facts are undisputed and the interpretation of statutes is subject to de novo review.
(Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911,
916.)


                                              II.

               The Trial Court Had the Power Under Section 1385(a) to
                     Dismiss the Gang Enhancement Allegation.
A. A Trial Court’s Power Under Section 1385(a)
              Section 1385(a) reads: “The judge or magistrate 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


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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.’” (In 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 power under section 1385(a);
however, “we will not interpret a statute as eliminating courts’ power under section 1385
‘absent a clear legislative 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 elimination is
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 punishment for the enhancements provided in this section or refuse
to impose the minimum jail sentence for misdemeanors in an unusual case where the
interests of justice would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of justice would best be
served by that disposition.” The District Attorney argues the phrase “[n]otwithstanding
any other law” is the Legislature’s clear direction to eliminate the trial court’s power
under section 1385(a) to dismiss or strike enhancement allegations made pursuant to
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)


                                              5
p. 848, col. 2, capitalization omitted). The latter dictionary gives this usage example:
“[Notwithstanding] their inexperience, they were an immediate success.”
(Merriam-Webster’s Collegiate Dict., supra, at p. 848, col. 2.)
              “The statutory phrase ‘notwithstanding any other law’ has been called a
‘“term of art”’ [citation] that declares the legislative intent to override all contrary law.
[Citation].” (Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5, 13, italics
added.) “When the Legislature intends for a statute to prevail over all contrary law, it
typically signals this intent by using phrases like ‘notwithstanding any other law’ or
‘notwithstanding other provisions of law.’” (In re Greg F. (2012) 55 Cal.4th 393, 406,
italics added; see Arias v. Superior Court (2009) 46 Cal.4th 969, 983 [“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)].)
              In Romero, supra, 13 Cal.4th at page 524, the court stated: “The phrase
‘[n]otwithstanding any other law’ can also be found at the beginning of subdivisions (c)
and (d) of section 667. The former subdivision addresses sentencing, and the latter
defines ‘prior conviction of a felony.’ Neither subdivision imposes a command that is
necessarily inconsistent with the court’s power to strike under section 1385.” (Italics
added.)
              Under these California Supreme Court authorities, the phrase
“[n]otwithstanding any other law” in section 186.22(g) means the trial court’s power to
dismiss or strike additional punishment for the enhancement governs over, overrides, or
displaces only contrary (In re Greg F., supra, 55 Cal.4th at p. 406), conflicting (Arias v.
Superior Court, supra, 46 Cal.4th at p. 983), or inconsistent (Romero, supra, 13 Cal.4th
at p. 524) law.



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              This interpretation is consistent with other statutory provisions limiting the
trial court’s power under section 1385(a). When the Legislature has intended to eliminate
the trial court’s section 1385(a) power to dismiss or strike an enhancement allegation, it
has done so directly and by using the word “notwithstanding” to juxtapose inconsistent
propositions. Examples are:
              1. 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 who is subject
to punishment under this 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 who is 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 under this section or a
finding bringing a person within the provisions of this section.”
              4. Section 12022.53, subdivision (h): “Notwithstanding Section 1385 or
any other provision of law, the court shall not strike an allegation under this section or a
finding bringing a person within the provisions of this section.”
              In each of these examples, the statutory provision prohibiting the trial 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 or strike



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allegations, including enhancement allegations. Section 186.22(g) gives the trial court
power to strike the additional punishment. Dismissing or striking an enhancement
allegation and striking the additional punishment when the enhancement allegation is
found to be true are two different things. (See In re Pacheco (2007) 155 Cal.App.4th
1439, 1444 [“Having decided to afford leniency in this case, the sentencing court had two
options. It could either strike the enhancement allegation in its entirety or strike the
additional three-year punishment for the enhancement”].) This distinction between
dismissing or striking the enhancement allegation and striking the additional punishment
is recognized in section 1385 itself. Subdivision (c)(1) of section 1385 states: “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).”
              The trial court’s power to dismiss or strike enhancement allegations is not
contrary to, in conflict with, or inconsistent with the court’s power to strike the additional
punishment for the enhancement. Use of the phrase “[n]otwithstanding any other law” in
section 186.22(g), therefore, does not constitute “clear language” (People v. Fritz, supra,
40 Cal.3d at p. 230) signaling the Legislature’s intent to eliminate a trial court’s
section 1385(a) authority to strike an enhancement alleged pursuant to section 186.22(b).

D. Section 1385, Subdivision (c)(1)
              As we have explained, subdivision (c)(1) of section 1385 gives a trial court
the power to strike the additional punishment for an enhancement if the court has the
power to dismiss or strike an enhancement under section 1385(a). While our reading of
section 186.22(g) might appear to make it redundant of subdivision (c)(1) of
section 1385, legislative history shows otherwise. Section 1385 was enacted in 1872.
(People v. Bonnetta (2009) 46 Cal.4th 143, 148.) Subdivision (c) of section 1385 was not
enacted until 2000 and was added by Statutes 2000, chapter 689, section 3, enacting


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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 of the original legislation in 1989 and initially was codified as
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
punishment for 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 authorize the trial court to refuse to impose the alternate penalty imposed by
section 186.22(b)(5). Campos was not cited to the trial court in this case.
              The trial court in Campos sentenced the defendant to a prison term of seven
years to life on an attempted murder count, struck various enhancement allegations, 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 of Appeal concluded the sentence on one of
the attempted murder counts was unauthorized. (Id. at p. 447.) Because the jury had
found gang allegations under section 186.22(b) to be true, section 186.22(b)(5) applied
and imposed a minimum sentence of 15 years before consideration of parole. (Campos,
supra, at p. 447.)
              The defendant in Campos argued the trial court had discretion under
sections 186.22(g) and 1385(a) to dismiss or strike the gang allegations and refuse to
impose the alternate punishment prescribed by section 186.22(b)(5). (Campos, supra,


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196 Cal.App.4th at p. 448.) The Court of Appeal rejected that argument on two alternate
grounds. First, the Court of Appeal concluded section 186.22(g) did not apply to
section 186.22(b)(5) because the penalty imposed by the latter section was not a sentence
enhancement but an alternate penalty provision imposing a minimum prison term.
(Campos, supra, at pp. 448-449.) In contrast, the penalties prescribed by
section 186.22(b)(1) added terms of two, three, four, five, or 10 years to the prison term
for the underlying felony. (Campos, supra, at p. 448.)
              Second, the Court of Appeal held section 1385(a) did not give the trial
court power to refuse to impose the penalty prescribed by section 186.22(b)(5).
(Campos, supra, 196 Cal.App.4th at pp. 450-451.) The court reasoned the term
“[n]otwithstanding any other law” in section 186.22(g) manifested the Legislature’s
intent to preclude operation of section 1385(a). (Campos, supra, at p. 452.) The Campos
court explained: “Use of the phrase ‘[n]otwithstanding any other law’ in section 186.22,
subdivision (g) therefore indicates that courts are to apply that statute—and not any other
potentially applicable statute, such as section 1385, subdivision (a)—when considering
whether to exercise the powers granted by that statute.” (Ibid.) The court also reasoned
that section 186.22(g), the more specific and later-enacted statute, prevailed over
section 1385(a), the more general and earlier-enacted statute, and that use of
section 1385(a) to dismiss or strike gang allegations or enhancements would render
section 186.22(g) “‘redundant and unnecessary.’” (Campos, supra, at pp. 453-454.)
              The Campos court concluded: “In sum, we hold that the existence and
language of section 186.22, subdivision (g) provide ‘clear legislative direction’ [citation]
that courts are to apply that statute—and not section 1385, subdivision (a)—in gang cases
when considering whether to dismiss or strike allegations or enhancements or to refuse to
impose alternate penalties.” (Campos, supra, 196 Cal.App.4th at p. 454.)
              We are not bound by Campos (Sarti v. Salt Creek Ltd. (2008) 167
Cal.App.4th 1187, 1193 [“there is no horizontal stare decisis in the California Court of

                                             10
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; that is, the phrase “[n]otwithstanding any other law” in
section 186.22(g) means courts are to apply that statute to the exclusion of all other
potentially applicable statutes. But California Supreme Court authority defines
“notwithstanding” as meaning a 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 In 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 other statutes limiting the trial court’s power under
section 1385(a).
              We also part ways with the Campos court in its conclusion that
section 186.22(g) would be redundant or unnecessary if section 1385(a) gave the trial
court power to dismiss or strike gang enhancement allegations. As we have explained,
there is a difference between dismissing or striking the enhancement allegation and
striking the additional punishment for that allegation. The grant of power under
section 1385(a) to dismiss or strike the enhancement allegation would not also grant the
trial court power to 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).




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                                             III.

                Remand Is Necessary Because the Trial Court Did Not
               State Its Reasons in an Order Entered upon the Minutes.
              Section 1385(a) states, “[t]he reasons for the dismissal must be set forth in
an order entered upon the minutes.” That was not done in this case. The trial court stated
on the record its reasons for dismissing the gang enhancement allegation, but that does
not suffice, and “a reporter’s transcript showing the trial court’s motivation is not
enough” (People v. Bonnetta, supra, 46 Cal.4th at p. 149). The remedy is to remand the
matter for the purpose of allowing the trial court to correct the defect by setting forth its
reasons in a written order entered upon the minutes. (Id. at p. 153.)


                                             IV.
                       The Request for Judicial Notice is Denied.
              Fuentes argues the District Attorney’s conduct in the final resolution of this
case as part of a settlement of another prosecution constitutes a waiver of this appeal. In
support of this argument, Fuentes requests that we take judicial notice of the trial court’s
minutes on September 25, 2013 in this case and the trial court’s minutes on the same date
in Orange County Superior Court case No. 13NF2463. We deny the request for judicial
notice because Fuentes did not file a motion for judicial notice as required by California
Rules of Court, rule 8.252(a). (See United Teachers of Los Angeles v. Los Angeles
Unified School Dist. (2012) 54 Cal.4th 504, 528.) Because we deny judicial notice, and
in light of our conclusion reached in part II. of the Discussion, we do not address the
waiver argument.




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                                       DISPOSITION
              Because the trial court failed to state its reasons for dismissing the gang
enhancement allegation in a written order entered upon the minutes, we remand to 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, ACTING P. J.



IKOLA, J.




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