PEOPLE v. GORE

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Appellant, v. Jeffrey Martin GORE, Defendant and Respondent.

No. B089331.

Decided: August 15, 1995

Gil Garcetti, Dist. Atty. of Los Angeles County, Diana L. Summerhayes and Brent Riggs, Deputy Dist. Attys., for plaintiff and appellant. Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Alex Ricciardulli, John Haveson, and Tracy A. Mooney, Deputy Public Defenders, for defendant and respondent.

In this “three strikes” case (Pen.Code,1 § 667, subds. (b)-(i)) we consider:  (1 ) the prohibition against plea bargaining (§ 667, subd. (g));  (2 ) a dismissal “upon the application of the” defendant (§ 1385, subd. (a));  (3 ) a dismissal for reasons not “set forth in an order entered upon the minutes” (§ 1385, subd. (a));  (4 ) section 667, subdivision (f)(2) and the separation of powers doctrine;  and (5 ) section 667, subdivision (e)(2)(A)(ii) and the prohibition against “cruel or unusual punishment” (Cal. Const., Art. I, § 17).

We conclude the trial court, in dismissing a serious-violent felony conviction allegation (§§ 211, 667, subds. (b)-(i), 667.5, subd. (c)(9), 1192.7, subds. (c)(19) and (c)(23)), violated a prohibition against plea bargaining (§ 667, subd. (g)), exceeded its jurisdiction by granting a defendant's dismissal motion (§ 1385, subd. (a)), invalidly dismissed a prior felony conviction allegation without setting forth reasons in the minutes (§ 1385, subd. (a)), had no power to dismiss a section 667, subdivisions (b)-(i) prior felony allegation, and imposition of the prescribed punishment would not be cruel or unusual.   Accordingly we reverse the judgment.

BACKGROUND

An August 22, 1994, information charged appellant possessed cocaine on July 20, 1994, (Health & Saf.Code, § 11350, subd. (a)) and alleged two robbery convictions as serious-violent felony priors (§§ 667, subds. (b)-(i)).   It also alleged two state prison priors (§ 667.5, subd. (b)), robbery (the same robberies as alleged for purposes of §§ 667, subds. (b)-(i)) and forgery.

On August 22, 1994, appellant pleaded not guilty and denied the felony conviction allegations.

Appellant filed a demurrer, two motions to dismiss the “three strike” priors, and a motion to suppress evidence (§ 1538.5).   The district attorney filed opposition papers and a request the trial court judicially notice its court records concerning the alleged robbery and forgery convictions.

Pretrial conferences were continued on September 20, September 22, September 29, and October 12.

On October 17, 1994, the trial court, “in furtherance of justice” (§ 1385, subd. (a)) dismissed one serious-violent felony conviction allegation (§§ 667, subds. (b)-(i)).   Appellant then pleaded guilty and admitted the other serious-violent felony conviction allegation (§§ 667, subds. (b)-(i)) and the two state prison prior conviction allegations (§ 667.5, subd. (b)).  Appellant waived time for sentencing and the trial court sentenced him “to 32 months in the state prison, low term doubled.”

This People's appeal (§ 1238, subd. (a)(10)) followed.

DISCUSSION

1. Prohibition against plea bargaining (§ 667, subd. (g)).

 Section 667, subdivision (g) provides:  “Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7.   The prosecution shall plead and prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (2) of subdivision (f).”

Section 1192.7 defines “plea bargaining” as “any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.”  (§ 1192.7, subd. (b);  italics added.)

The People contend the trial court violated this prohibition against plea bargaining.   We agree.

On October 17, 1994, the trial court had an in-chambers, unreported disposition discussion with counsel.   The only record of this discussion is a reference by the trial court made later that morning in open court.   The trial court stated, “I had sort of indicated, and I don't know if it's on the record, but let's clarify at this time, that if the defendant pleaded to the low term doubled, 32 months total, that I would strike the prior.”

Such discussions, in “serious felony” and other specified cases, were prohibited by Initiative approved June 8, 1992.  (§ 1192.7.)   By then, for ordinary people, “plea bargaining” was a dirty word.   Although appellate courts had approved plea bargaining (People v. West (1970) 3 Cal.3d 595, 604–605, 91 Cal.Rptr. 385, 477 P.2d 409), the people had condemned it.   While appellate courts viewed plea bargaining as “indispensable to the efficient administration of criminal justice” (ibid.) the people viewed plea bargaining as incompatible with “justice.”

In 1979, a prosecutor described the ordinary person's image of plea bargaining this way:  “ ‘Step right up folks.   Come look at what we have for you.   A little gift?   A little deal?   A small discount?   Why, no sireeee.   We have an honest to goodness, absolutely, guaranteed, today only, weekday special:  PLEA BARGAIN.’

“ ‘You heard me right.   Yes, you did.   A plea bargain.   An absolutely irresistible, once-in-a-lifetime plea bargain.   I mean a pleeea bargain!   A money back, can't lose, judge sanctioned—STEP RIGHT UP AND HEAR THIS NOW—P–L–E–A B–A–R–G–A–I–N.’

“ ‘ “Can I afford it?” [t]he little lady asks.   Why, my Dear Little Lady, you can't not afford it.   Now, hear this.   That's it, move in closer.   What we're offering right now, right here, to just you special folks is a plea bargain.   A no-money down, any trade-in allowed, credit for time served, work furlough recommended, concurrent, weekends only, probation guaranteed, out-patient counseling, conjugal visitation rights, nolo contendere PLEA BARGAIN.’ ”  (Bradbury, “Plea Bargaining:  The Carnival Comes to the Courthouse,” 4 Prosecutor's Brief, Number 5, p. 5 (Mar.–Apr. 1979).)

In 1994, to avoid such merchandising of justice in cases involving serious-violent felony priors, the legislature enacted section 667, subdivision (g).   We find that by its inchambers, unreported sentence commitment, the trial court engaged in plea bargaining and violated this provision.2

2. A dismissal “upon the application of the” defendant (§ 1385, subd. (a)).

 The October 17, 1994, proceeding was in the words of the trial court, for “determination of ․ motions made by the defense, including ․ motion to strike the prior․”   In dismissing one of the alleged serious-violent priors (§ 667, subds. (b)-(i)) “in furtherance of justice” (§ 1385, subd. (a)), the trial court was ruling upon “a formal motion by the defense” (People v. Smith (1975) 53 Cal.App.3d 655, 657, 126 Cal.Rptr. 195).   The minute order so reflects:  “The Court strikes the first prior alleged in the information pursuant to defense motion.”  (Italics added.)

The People contend that section 1385 3 authorizes a dismissal only “upon the application of the prosecuting attorney” or on the trial court's “own motion” but not on motion of the defendant.   The People are correct.

The cases make clear that if a dismissal is pursuant to a defendant's motion it is not “in furtherance of justice” and is not authorized by section 1385.   (People v. Smith, supra, 53 Cal.App.3d 655, 657–658, 126 Cal.Rptr. 195 [“Here, the entire transaction was initiated by respondent's motion to the court to withdraw his not guilty plea and to plead guilty to a lesser related offense;  while a defendant can informally suggest that a court consider a dismissal of charges against him, section 1385 does not provide a formal motion by the defense to accomplish the same result.   Therefore, the court's action cannot properly be characterized as a dismissal of charges ‘in furtherance of justice’ as authorized by Penal Code section 1385.”];  People v. Andrade (1978) 86 Cal.App.3d 963, 973, 150 Cal.Rptr. 662 [“The motion which was made and granted was that of defendant not that of the trial court.   The statute makes no provisions for a defendant to move for dismissal.   Although without statutory provision, the trial court expressly accepted, considered, and granted defendant's motion to dismiss.   To recognize such motion and order would judicially enlarge the scope of Penal Code section 1385 if the dismissal were intended in furtherance of justice.   The Legislature limited the right to initiate the use of the authority of section 1385 to the People and to the court.   Granting a defendant's motion cannot be properly characterized as a dismissal of charges in furtherance of justice as authorized by Penal Code section 1385.”];  People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136–137, 262 Cal.Rptr. 576 [“A criminal prosecution may be dismissed in superior court and the defendant may be discharged on several statutory grounds, including those set forth in section 1385.   However, that section does not authorize the defendant to make a motion to dismiss in furtherance of justice.   To recognize such motion and order would judicially enlarge the scope of section 1385 if the dismissal were intended in furtherance of justice.   The Legislature limited the right to initiate the use of section 1385 to the People and to the court.   Granting a defendant's motion cannot be properly characterized as a dismissal of charges in furtherance of justice pursuant to that section.”]   Internal citations omitted;  Italics added in original.)

In granting the defendant's motion to dismiss the subject prior, the trial court acted outside the authority of section 1385.   Accordingly, its order was invalid.

3. A dismissal for reasons not “set forth in an order entered upon the minutes” (§ 1385,4 subd. (a)).

 Section 1385 requires “The reasons for the dismissal must be set forth in an order entered upon the minutes.”

The People contend the trial court's order dismissing the subject prior was defective because “reasons [were not] entered upon the minutes.”   The contention is correct.   The minute order contains no reason.   It states only:  “The Court strikes the first prior alleged in the information pursuant to defense motion.”

“The requirement of a statement of reasons for dismissal in section 1385 cases is mandatory, not directory.   The underlying purpose of this requirement is to protect the public interest against improper or corrupt dismissals, and to impose a purposeful restraint upon the exercise of judicial power.

“The courts have rejected attempts to ‘make do’ with reasons included in the reporter's transcript.  ‘It is not enough that on review the reporter's transcript may show the trial court's motivation;  the minutes must reflect the reason “ ‘so that all may know why this great power was exercised.’ ”

“ ‘Failure to state the reasons in the minutes renders a dismissal under section 1385 invalid.’ ”  (In re Juan C. (1993) 20 Cal.App.4th 748, 753, 24 Cal.Rptr.2d 573.   Internal citations omitted;  italics added in original.)  (See People v. Orin (1975) 13 Cal.3d 937, 943–945, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 503, fn. 7, 72 Cal.Rptr. 330, 446 P.2d 138;  People v. Superior Court (Flores), supra, 214 Cal.App.3d 127, 135–136, 262 Cal.Rptr. 576;  People v. Andrade, supra, 86 Cal.App.3d 963, 974–975, 150 Cal.Rptr. 662;  People v. Smith, supra, 53 Cal.App.3d 655, 657, 126 Cal.Rptr. 195.)

4. Section 667, subdivision (f)(2) and the separation of powers doctrine.

 Section 1385, subdivision (a) permits a trial court on its own motion or upon application of the prosecuting attorney to dismiss an action in the furtherance of justice.   The court's power includes the power to dismiss or strike an enhancement.  (People v. Thomas (1992) 4 Cal.4th 206, 209, 14 Cal.Rptr.2d 174, 841 P.2d 159.)  Section 1385, subdivision (b), however, provides that the section does not authorize a judge to strike “any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”   When the Legislature passed Assembly Bill No. 971, the “three strikes” statute, it placed its provisions in section 667.   Therefore, under the statutes the court appears to have been prohibited from dismissing or striking the subject serious-violent prior.

Respondent appears to concede this much, acknowledging that “[i]f Penal Code section 667, as amended, made no reference to Penal Code section 1385, this argument might prevail, and courts would be divested of the power to strike under Penal Code section 1385.”

But, respondent argues:  (1) section 667, subdivision (f)(2) allows the prosecutor to “move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385” (2) since the statute authorizes the motion it impliedly empowers the court to grant it and (3) if the court has the power to dismiss such a prior felony conviction (upon motion by the prosecutor) then that power cannot constitutionally be conditioned upon prosecutor consent.  (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.)   We disagree.  (See People v. Glaster (1995) 45 Cal.Rptr.2d 65 (review granted Oct. 19, 1995);  People v. Bailey (Cal.App.1995) 44 Cal.Rptr.2d 205 (review granted Nov. 16, 1995);  People v. Petty (Cal.App.1995) 44 Cal.Rptr.2d 34 (Review granted Nov. 2, 1995.))

While the statutory provision considered in Tenorio appears similar to that considered here, a closer examination reveals the effects of the provisions are markedly different.   The “three strikes” legislation when examined as a whole does not grant power to a prosecutor but rather substantially curtails the prosecution's discretion in dealing with prior felony convictions.   Subdivision (g) of section 667 categorically prohibits the use of prior felony convictions in plea bargaining.   Subdivisions (g) and (f)(1) require the prosecution to plead and prove all known prior felony convictions and subdivision (g) further prohibits prosecutors from entering into any agreement to strike or seek the dismissal of prior felony conviction allegations.   The only discretion afforded the prosecution is that provided in subdivision (f)(2) whereby it may move to dismiss or strike a prior felony conviction allegation if there is insufficient evidence to prove the allegation or in the furtherance of justice.

The severely limited prosecutorial discretion in charging and negotiating presented by the overall “three strikes” statutory scheme hardly equates to the “unreviewable” and “arbitrary” discretion vested in the prosecution which was criticized in Tenorio, supra, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.   Rather, the statutory scheme represents tight legislative control of a prosecutor sharply curtailing the prosecution's previous discretion in carrying out its traditional charging function.

With respect to the court's power, the provision at issue in Tenorio took from the court a long-standing historical power to independently strike an allegation of a prior conviction and extended to the prosecutor a power to control the court's ability to exercise its power to strike.   At the time Tenorio was decided the court previously had the unfettered power to strike the prior convictions in the interest of justice.   Here, no such power existed.   Rather, the court's power to strike a prior serious felony conviction alleged pursuant to section 667 had already been taken from the court in 1986 when the Legislature enacted section 1385, subdivision (b).  People v. Valencia (1989) 207 Cal.App.3d 1042, 255 Cal.Rptr. 180 upheld section 1385, subdivision (b) against a separation of powers argument.

 Respondent offers a second reason the trial court had power to strike the subject prior:  section 1385, subdivision (b) disempowers the court only regarding enhancements;  the subject prior was not an enhancement (People v. Martin (1995) 32 Cal.App.4th 656, 666–667, 38 Cal.Rptr.2d 776);  therefore the court retained power to strike the subject prior.   We find the argument unpersuasive.

In 1986, when the Legislature added subdivision (b) to section 1385, serious priors were “enhancements” because they were additional terms required to be added to a base term.  (People v. Martin, supra, 32 Cal.App.4th at p. 667, 38 Cal.Rptr.2d 776.)   By adding subdivision (b) to section 1385 the Legislature removed from “ ‘trial court[s] all discretion to strike [serious] prior felony convictions, thus rendering imposition of a five-year enhancement for each such prior conviction a certainty.’ ”  (People v. Valencia, supra, 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)

In 1994, when the legislature enacted its “three strikes” law its stated intent was “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (§ 667, subd. (b).)  It sought to accomplish these purposes not only by increasing punishment but by curtailing discretion, both prosecutor and judge.   Although it increased punishment by doubling “the term” (§ 667, subd. (e)(1)) or, when “a defendant has two or more prior felony convictions,” by imposing a minimum 25–year term (§ 667, subd. (e)(2)), thereby changing the character of section 667, subdivision (b) priors from enhancements to non-enhancements—there is nothing to suggest that in doing so the Legislature surreptitiously conferred upon trial courts the very power it had earlier removed:  the power to strike serious priors.

People v. Thomas (1992) 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159 is apposite.   It sought to ascertain the Legislature's intent in amending section 1170.1, subdivision (h).   Prior to the amendment a trial court had discretion to strike listed enhancements if sufficient mitigating circumstances existed.   One of the listed enhancements was section 12022.5, personal use of a firearm.   The amendment, without reference to section 1385 and the court's power to dismiss in furtherance of justice, deleted section 12022.5 from the list of strikable enhancements.  Thomas held that by doing so the Legislature expressed a clear intent to prohibit trial courts from dismissing such enhancements under section 1385, in furtherance of justice.  (People v. Thomas, supra, 4 Cal.4th at p. 208, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

Thomas stated, “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]   In order to determine this intent, we begin by examining the language of the statute.  [Citations.]   But [i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.  [Citations.]   Thus, [t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citation.]   Finally, we do not construe statutes in isolation, but rather read every statute with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.”  (People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  internal quotation marks omitted.)

Thomas also noted that “it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”   (Id. at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)  Thomas further observed that the amendment to section 1170.1, subdivision (h)—deleting section 12022.5—was part of a measure expanding “criminal liability for unlawful firearm use or possession” (id. at p. 212, 14 Cal.Rptr.2d 174, 841 P.2d 159) and it was “highly unlikely the Legislature intended nonetheless to preserve broad judicial authority under section 1385 to strike a firearm use enhancement in ‘furtherance of justice’.”

So here, it is “highly unlikely the Legislature,” in enacting a measure “to ensure longer prison sentences and greater punishment for those ․ [with] serious and/or violent felony” priors, “intended nonetheless to [confer] broad judicial authority under section 1385 to strike” those very serious and/or violent felony priors.   To so construe sections 667, subdivisions (b)-(i) “would result in absurd consequences which the Legislature did not intend.”  (People v. Thomas, supra, 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

 Finally, respondent makes this argument.   When a penal statute is amended so as to lessen punishment, the provision is applied retroactively to benefit the defendant in pending cases.  (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434.)   Thus even if section 1385, subdivision (b) applied under the “three strikes” legislation to bar the trial court from striking the prior serious felony conviction allegation, passage of Proposition 184 (passed on November 8, 1994), placing the statutory provisions in section 1170.12 rather than section 667, removed the bar.   Therefore the trial court could now strike the prior allegation under section 1385, subdivision (a) which must be applied to his benefit.

We disagree, concluding that despite the nonapplicability of section 1385, subdivision (b) to section 1170.12, it is clear the voters in passing the “three strikes” initiative intended to preclude a trial court, except as provided in section 667, subdivision (f)(2), from striking a serious prior allegation pursuant to section 1385, subdivision (a).

The analysis and the arguments contained in the ballot pamphlet make it abundantly clear the measure was presented to the voters as one that would in no manner weaken the “three strikes” law as passed by the Legislature.   Rather, it was presented as a measure that would have no impact or one that might possibly “strengthen” the existing law.   Moreover, a stated need for the law according to the pamphlet was to limit not extend the powers that were being exercised by the judiciary to reduce sentences.   From reading the ballot pamphlet including the proposed legislation, a voter would have absolutely no indication passage of the proposition would result in an increase in the discretion afforded the judiciary to dismiss prior conviction allegations.

We find respondent's argument without merit.

5. Section 667, subdivision (e)(2)(A)(ii) and the prohibition against “cruel or unusual punishment” (Cal. Const., Art. I, § 17).

The trial court concluded it would be cruel and unusual punishment to sentence appellant to a 25–years–to–life term.   We disagree.

Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual.   The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature.   Perhaps foremost among these are the definition of crime and the determination of punishment.   While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ”  (people v. wingo (1975) 14 cal.3d 169, 174, 121 cal.rptr. 97, 534 P.2d 1001.)

“A penalty offends the proscription against cruel and unusual punishment when it is ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’  (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921];  In re DeBeque (1989) 212 Cal.App.3d 241, 248 [260 Cal.Rptr. 441].)  ‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree.   The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.   The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense” [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.’  (Lynch, supra, 8 Cal.3d at pp. 423–424 [105 Cal.Rptr. 217, 503 P.2d 921];  People v. Kun (1987) 195 Cal.App.3d 370, 374 [240 Cal.Rptr. 564].)”  (People v. King (1993) 16 Cal.App.4th 567, 571–572, 20 Cal.Rptr.2d 220.)

“The Lynch court fashioned a three-pronged test to aid in determining whether a particular punishment is unconstitutionally disproportionate to the offense for which it is imposed;  the test is not determinative, but is a tool to aid in the court's inquiry.   Under the first prong, the court examines the nature of the offense and/or the offender, paying particular attention to the danger each poses to society.   Secondly, the court may compare the challenged punishment with punishments prescribed for other, more serious, crimes in the same jurisdiction.   Finally, the challenged penalty may be compared with punishments for the same offense in other jurisdictions.”  (People v. Almodovar (1987) 190 Cal.App.3d 732, 739–740, 235 Cal.Rptr. 616.)

 The analysis developed in In re Lynch and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case.  (In re DeBeque, supra, 212 Cal.App.3d 241, 249, 260 Cal.Rptr. 441.)   Determinations whether a punishment is cruel or unusual may be made based on the first prong alone.  (See, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482–488, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Weddle (1991) 1 Cal.App.4th 1190, 1198–1200, 2 Cal.Rptr.2d 714;  People v. Young (1992) 11 Cal.App.4th 1299, 1308–1311, 15 Cal.Rptr.2d 30.)   The defendant has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe.  (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254–255, 260 Cal.Rptr. 441.)

 Appellant was convicted of possession of cocaine, a felony.   The trial court, in finding the imposition of the sentence required under the “three strikes” legislation would constitute cruel and unusual punishment, mistakenly focused on the current offense and the small amount of cocaine involved.   Appellant, however, is not subject to a life sentence under the “three strikes” legislation merely on the basis of his current offense but on the basis of his recidivist behavior.

 Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.  (See People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)   In discussing recidivist statutes the Supreme Court of the United States has stated:  “The purpose of a recidivist statute ․ [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.   This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.   Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  (Rummel v. Estelle (1980) 445 U.S. 263, 284–285, 100 S.Ct. 1133, 1144–1145.)

Appellant was subject to a 25–years–to–life term not just because he possessed cocaine on July 20, 1994, but because of his serious prior criminal offenses.   On November 10, 1985, appellant robbed a clerk, personally using a knife.   Three days later, on November 13, 1985, he again robbed a clerk, again personally using a knife.   He was convicted of these two serious-violent felonies on January 17, 1986, and sentenced to state prison.   In March 1989, while on parole, appellant was convicted of theft, given a jail sentence, and found in violation of parole.   Only months later, in November 1989, appellant was arrested for forgery, convicted, and sentenced to state prison.   He was paroled August 31, 1990, and found in violation three weeks later.   In October 1991 appellant was discharged from parole.   A year later, in December 1992, appellant, for the fourth time, was convicted of a felony (possession of cocaine and also a misdemeanor, being under the influence of a controlled substance [Health & Saf.Code, § 11550] ), and placed on three years probation with one year in the county jail.   On May 25, 1994, the court which had granted appellant probation issued a bench warrant for his arrest.   On July 20, 1994, appellant committed the instant offense.

As this chronology demonstrates, appellant, now 32, has had a continuous criminal history for 10 years.   He has been granted probation and parole, he has been jailed and imprisoned—all without apparent reformative or deterrent effect.   Under all the circumstances, this case and this defendant is not that “exquisite rarity” (People v. Weddle, supra, 1 Cal.App.4th 1190, 1196, 2 Cal.Rptr.2d 714)—an instance of punishment which offends fundamental notions of human dignity or which shocks the conscience.

.    .    .    .    .

For the reasons we have discussed, the trial court exceeded its authority in errantly striking a serious-violent felony conviction allegation under section 1385 and thereafter imposing an unlawful sentence.

DISPOSITION

The judgment is reversed.

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   We deem inconsequential the trial court's belated effort to unlink its sentence commitment from appellant's agreement to plead guilty.   Linked or unlinked, the trial court committed itself to imposing a 32–month sentence, despite an undismissed serious-violent prior and two mandatory state prison priors.   Appellant admitted these three priors and the trial court, by ignoring the two prison priors (§ 667.5, subd. (b)), “honored” its 32–month sentence commitment.Although neither section 667, subdivision (g) nor 1192.7, subdivision (b) prohibit “chamberizing” or unreported discussions in “three strike” cases, to engage in either during a pretrial disposition conference, can only tempt a violation of section 667, subdivision (g).

3.   In pertinent part, the section provides:  “(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.”

4.   The section provides:  “(a) 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 an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.“(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs. JOHNSON, J., concurs in the judgment only.