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Name: People v. Venegas
Case #: B250678
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 09/11/2014
Subsequent History: Review granted 12/10/2014: S221923

Penal Code section 186.22, subdivision (g) does not restrict a trial court’s discretion under section 1385, subdivision (a), to strike a section 186.22, subdivision (b)(4) gang allegation. Following a jury trial, Venegas was convicted of multiple offenses, including shooting at an inhabited dwelling (Pen. Code, § 246); an allegation that he did so for the benefit of a gang (Pen. Code, § 186.22, subd. (b)(4)(B)) was found true. Prior to trial, Venegas sought to enter an open plea to this count, in the “hope” that the trial court would strike the section 186.22, subdivision (b)(4)(B) allegation, which requires the court to impose a 15-year-to-life prison term. The prosecutor opposed the motion, arguing that the court lacked discretion to strike the allegation under People v. Campos (2011) 196 Cal.App.4th 438, which held that 186.22, subdivision (g) restricts the trial court’s ability under section 1385, subdivision (a), to strike section 186.22, subdivision (b)(4) gang allegations. The trial court agreed with the prosecution. Venegas appealed following his conviction. Held: Reversed. A trial court’s authority under section 1385, subdivision (a) to strike factual allegations relevant to sentencing cannot be displaced by another statutory provision absent “clear language.” Disagreeing with Campos, the appellate court here concluded that section 186.22, subdivision (g) does not use clear language that expresses the Legislature’s intent to displace section 1385. Thus, the trial court retained discretion to strike Venegas’ gang allegation. Although the trial court was understandably unaware that it had such authority, its failure to exercise its discretion based on its mistaken belief was an abuse of discretion. The error was not harmless because the trial court told Venegas that it would have struck the gang allegation if it possessed the discretion to do so. [Editor’s Note: This issue is now before the California Supreme Court. (See People v. Fuentes (2014) 225 Cal.App.4th 1283, review granted 8/13/2014 (S219109/G048563) [holding that section 186.22, subdivision (g) does not eliminate the trial court’s power to dismiss or strike an enhancement alleged under section 186.22, subdivision (b)].)]