Error and/or relief
It was error for the judge to stay the section 12022.1 enhancement under section 1385(b)(1). An enhancement may be stricken or imposed, unless there is some other legal reason it must be stayed rather than imposed.
First Holding:
Ordinarily, an enhancement must be either imposed or stricken in furtherance of justice under section 1385. Section 1385(b)(1) adds that, 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 has no authority to stay an enhancement, rather than strike it—not, at least, when the only basis for doing either is its own discretionary sense of justice.
There are exceptions to this rule that permit courts to stay the punishment imposed for an enhancement, for example section 654 and rule 4.447 of the California Rules of Court. These exceptions are not discretionary; they are limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.
Authority:
PEN 1385(b)(1)
People v. Lopez (2004) 119 Cal.App.4th 355, 364
Second Holding:
According to the transcript of the sentencing hearing, the trial court here relied on section 1385(b)(1) when it purported to stay the section 12022.1 enhancement. It does not appear that any overriding statute prohibits imposition of the enhancement in this case.
As a result, the court lacked the authority to stay the enhancement. In general, we presume a trial court knew and followed the law. Based on the statutory provision cited by the court, we conclude the court intended to strike the punishment for the enhancement rather than imposing an unauthorized stayed sentence.
The minute order from the sentencing hearing supports this conclusion by indicating that the court struck the enhancement, though it suggests the court did so at a prior hearing, which is not supported by the transcript. We will modify the judgment accordingly.
Authority:
People v. Ramirez (2021) 10 Cal.5th 983, 1042