PEOPLE v. MILLS

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Hans John MILLS, Defendant and Appellant.

No. F022282.

Decided: March 26, 1996

Alisa M. Weisman, Pomona, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Jane A. Cardoza and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

INTRODUCTION

Appellant Hans John Mills was convicted of burglary and two counts of receiving stolen property.   One of the receiving convictions was based on conduct occurring prior to the passage of the three strikes law.   The remaining convictions were within the three strikes law, and it was found true that appellant had four prior serious felony convictions for burglary which were alleged both as strikes and enhancements.

In the nonpublished portions of this opinion, we will reverse the receiving conviction that was within the three strikes law (count III) because it was based on the receipt of the same property stolen during the burglary.   We will also reject several challenges to appellant's third strike sentence of 25 years to life, and remand for resentencing given the trial court's failure to impose terms for the Penal Code 1 section 667, subdivision (a) and section 667.5, subdivision (b) enhancements.

In the published portion of this opinion, we will conclude that under the three strikes law a trial court does not have the discretion to dismiss a prior conviction pleaded and proved as a strike on its own motion in furtherance of justice.**

STATEMENT OF THE CASE **

STATEMENT OF FACTS**

DISCUSSIONI.-IV.**V.THE TRIAL COURT DID NOT HAVE THE DISCRETION TO DISMISS THE PRIOR “STRIKE” CONVICTIONS

We next address whether the three strikes law eliminated the trial court's discretion to dismiss a prior “strike” conviction on its own motion in the interests of justice.

At the sentencing hearing in the instant case, in an attempt to establish mitigating circumstances for the court to dismiss the four prior convictions pleaded and proved as “strikes,” appellant introduced evidence that he suffered from a low intelligence level when he was in high school.   The prosecutor argued that appellant had a lengthy record of burglary convictions, and while he might be “slower than average,” such factors would not mitigate his continuous criminal conduct.   The prosecutor also argued that the three strikes law did not permit the court to dismiss the prior “strike” convictions.   The court acknowledged the evidence that appellant functions in the intelligence level of borderline to dull normal, and stated:

“I would not say and I will not say on the record, were it not the status of the law as I perceive it, I would refuse to strike those priors.   I might well be willing to strike priors but for the fact that as I read the law that is not a power given to me.   And as I understand the law, I don't find that that is inconsistent with other limits that are put on judge's discretion.”

Appellant contends that the court should have granted his motion to dismiss the prior “strike” convictions because the three strikes law has not eliminated the court's discretionary power under section 1385, subdivision (a) to dismiss the priors on its own motion.   Appellant argues that if three strikes is interpreted to condition the court's discretionary power on the prosecution's assent, such a restriction is an unconstitutional infringement on the separation of powers doctrine.   Respondent argues that the three strikes law prohibits the trial court from dismissing the prior “strike” conviction on its own motion, and the court can only dismiss on the prosecutor's motion in the interests of justice, or for insufficiency of the evidence.

Thus, the issue is whether the trial court may exercise discretion, under section 1385, to dismiss or strike a prior “strike” conviction under the three strikes law in the interests of justice, and whether the elimination of that discretion violates the separation of powers doctrine as set forth in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.

We note that several districts have reached this issue, and the matter is currently pending before the California Supreme Court in People v. Superior Court (Romero) (S045097).

We thus address this issue having considered the arguments raised by the parties in the instant case, and the conclusions reached by other districts.

A. Three strikes is not an enhancement

The first issue is whether the existing restriction on the court's discretion, contained in section 1385, subdivision (b), applies to the three strikes law.   Section 667, subdivision (a) mandates a five-year sentence enhancement for a prior serious felony conviction.   The three strikes law, Assembly Bill 971, was codified as section 667, subdivisions (b) through (i), and enacted as urgency legislation on March 7, 1994.   The three strikes initiative, Proposition 184, was passed by the electorate in November 1994 and codified as section 1170.12.

Section 1385, of which subdivision (a) was originally enacted in 1872, and subdivision (b) was added by amendment in 1986, states:

“(a) The judge or magistrate may, either on 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 [Penal Code] Section 667.”

Section 1385, subdivision (a) thus authorizes the trial court to dismiss a prior conviction allegation on its own motion in furtherance of justice.   Section 1385, subdivision (b) prohibits the trial court from striking a prior conviction alleged as an “enhancement” under section 667.

The question is whether a prior conviction pleaded and proved under the three strikes law is an “enhancement” such that section 1385, subdivision (b) prohibits the trial court from dismissing the strike on its own motion.

 When construing a statute, our primary task is to ascertain the lawmakers' intent.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)   In determining that intent, “ ‘The court turns first to the words themselves for the answer.’ ”  (Ibid., quoting People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1.)  “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).  [Citations.]”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

 We are not prohibited “from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.  [Citation.]  Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citations.]  An interpretation that renders related provisions nugatory must be avoided [citation];  each sentence must be read not in isolation but in the light of the statutory scheme [citation];  ․” (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299;  see also People v. Ramirez, supra, 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374.)

 We find that the additional punishment imposed under the three strikes law, in both section 667, subdivisions (b) through (i) and section 1170.12, is not an “enhancement” as described in section 1385, subdivision (b).   In People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, the court held the trial court erred in failing to double the punishment imposed for the subordinate consecutive term in a three strikes case.   Martin distinguished the “prescribed punishment for a crime” from an “enhancement,” which is “ ‘an additional term of imprisonment added to the base term.’  (Cal. Rules of Court, rule 405(c).)”  (Martin, supra, 32 Cal.App.4th at p. 666, 38 Cal.Rptr.2d 776.)

“The leading case distinguishing enhancements from the prescribed punishment for a crime is People v. Hernandez (1988) 46 Cal.3d 194 [249 Cal.Rptr. 850, 757 P.2d 1013].   In Hernandez, our Supreme Court observed that ‘an enhancement “means an additional term of imprisonment added to the base term.” ’   In contrast, a separate offense base term ‘involve[s] ․ a choice among three possible terms prescribed by statute.’  (Id. at p. 207 [249 Cal.Rptr. 850, 757 P.2d 1013].) [A]n enhancement is still characterized by a ‘focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.   That is one of the very purposes of an enhancement['s] existence.’  [Citations.]”  (People v. Martin, supra, 32 Cal.App.4th at pp. 666–667, 38 Cal.Rptr.2d 776.)

“It would be a perverse reading of the law to conclude that by not amending section 1170.1, subdivision (a) the Legislature intended the reference to section 667 in that provision to characterize the entire new statute as an enhancement.”  (People v. Martin, supra, 32 Cal.App.4th at p. 668, 38 Cal.Rptr.2d 776.)

People v. Anderson (1995) 35 Cal.App.4th 587, 593, 41 Cal.Rptr.2d 474, similarly concluded that the Legislature created “a parallel system of base terms” by enacting the three strikes law, rather than a new set of enhancements.

We agree with the rationales set forth in Martin and Anderson, and conclude that the sentence mandated by the three strikes law is not an enhancement within the meaning of section 1385, subdivision (b).   Thus, the section 1385, subdivision (b) restriction on the trial court from dismissing a prior conviction charged as an enhancement does not operate to bar the trial court from dismissing a prior conviction under the three strikes law.

B. The court may not dismiss a strike on its own motion

We next determine whether the provisions of the three strikes law prohibit the trial court from dismissing, on its own motion, a prior conviction pleaded and proved as a strike.

Respondent argues that section 667, subdivision (f)(2) permits only the prosecutor to dismiss a prior conviction pleaded and proved as a strike.   Section 667, subdivision (f)(2), states:

“The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”

Identical language is contained in section 1170.12, subdivision (d)(2).   The prosecution thus expressly has the power to move to dismiss “strike” priors in the furtherance of justice.   The question is whether the trial court has the authority, under section 1385, subdivision (a), to strike or dismiss “strikes” on its own motion under the three strikes law.

 “[I]t is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.  (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1009 [232 Cal.Rptr. 132, 728 P.2d 202] [section 1385 may be held inapplicable ‘in the face of [a] more specific proscription on the court's power’];  People v. Tanner [ (1979) ] 24 Cal.3d [514,] 519–521 [156 Cal.Rptr. 450, 596 P.2d 328] [specific language of section 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under section 1385];  see also People v. Dillon (1983) 34 Cal.3d 441, 467 [194 Cal.Rptr. 390, 668 P.2d 697] [deletion of provision indicates legislative intent to change law].)   As we stated in People v. Williams, supra, 30 Cal.3d at page 482 [179 Cal.Rptr. 443, 637 P.2d 1029], ‘Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.’ ”  (People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

 The provisions of the three strikes law require the trial court to impose the appropriate second or third strike sentence.  Section 667, subdivision (c) provides in part:

“(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to the following:

“․

“(2) Probation for the current offense shall not be granted, nor shall execution or imposition of sentence be suspended for any prior offense.”

The only authorized procedure for not imposing sentence on a prior conviction is to strike the prior.  (People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502;  People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123, 231 Cal.Rptr. 387.)   It is quite apparent that the Legislature intended to deprive the courts of the power to dismiss prior “strike” conviction allegations, except for cases involving an insufficiency of the evidence.   This interpretation is consistent with the Legislature's stated intent when it passed the three strikes law:  “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 the discretion of both the prosecutor and the court.

Section 667, subdivision (f)(2) does not impliedly empower the trial court to dismiss a strike on its own motion.   We hold that trial courts lack the authority to dismiss, on their own motion, prior convictions pleaded and proved as strikes in the furtherance of justice.

C. Separation of powers

Appellant argues that the three strikes law violates the separation of powers doctrine because, under the statute, the trial court's power to dismiss a strike is unconstitutionally conditioned on the prosecution's consent.

 Section 667, subdivision (f)(1) requires the three strikes legislation to be applied in every case in which a defendant has a defined prior felony conviction, and further requires the prosecution to plead and prove each prior felony conviction except as provided in subdivision (f)(2).   Subdivision (f)(2) allows the prosecuting attorney to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to section 1385 or, if there is an insufficiency of the evidence, it authorizes the court to dismiss or strike a prior conviction allegation if it is satisfied “there is insufficient evidence to prove” the allegation.   Nowhere in the statute does it permit the court to strike, on its own motion, a prior “strike” conviction in the furtherance of justice.

Appellant contends that these provisions require prosecutorial approval of the court's attempt to exercise discretion to dismiss or strike the prior conviction, and constitutes a grant of such unfettered prosecutorial discretion over the court that it is an unconstitutional violation of the separation of powers doctrine as set forth in People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.

In Tenorio, the court found a provision in Health and Safety Code section 11718 which required a motion by the district attorney before a trial court could exercise its power to strike prior conviction allegations, violated the separation of powers doctrine.  Tenorio 's holding was based on an extended history, dating to 1850, of unrestricted authority by the judiciary to dismiss a charged prior without the concurrence of the prosecutor.  (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The court rested its decision on both the fact the disputed statutory provision deprived the court of its traditional discretion in the exercise of sentencing decisions, and that the executive branch's power was extended to interfere with the judicial process in an unprecedented fashion.  (Id. at pp. 94–95, 89 Cal.Rptr. 249, 473 P.2d 993.)  “The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor.”  (Id. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)  Tenorio pointed to the historical fact that the Legislature had never denied to the judiciary the power to dismiss since the forerunner of current section 1385:  “ ․ even if the Legislature could constitutionally remove the power to strike priors from the courts, it has not done so.”   (Ibid.)

Appellant's reliance on Tenorio for purposes of the three strikes law is misplaced for two reasons.   First, the separation of powers doctrine underlying the reasoning of Tenorio has been undermined by subsequent developments in the law.   In 1975, the Legislature enacted section 1203.06 which prohibited the court from granting probation or suspending execution of a sentence for any person using a firearm in the commission of designated crimes.  (Stats.1975, ch. 1004, § 2.)   Although section 1203.06 did not expressly state judicial discretion to dismiss or strike under section 1385 was precluded, the court in People v. Tanner (1979) 24 Cal.3d 514, 520–521, 156 Cal.Rptr. 450, 596 P.2d 328 held such to be the case.  Tanner upheld an implied limitation on judicial discretion to strike the firearm enhancement.   The court expressly rejected “any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.”  (Id. at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

“ ‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’  [Citation.]  ‘[T]he legislative branch of the government has the power to declare that in certain ․ cases, probation may not be granted.   The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government.   It does not impair, restrict nor enlarge upon the jurisdiction of the courts.   The function of the courts is to determine the guilt or innocence of the accused.   What disposition may thereafter be made by way of penalty is for the Legislature to determine.’ ”  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

In 1982, the voters enacted the previous version of section 667, the “Victims' Bill of Rights,” through the initiative process, which imposed five-year enhancements for certain previous serious felony convictions.  People v. Fritz (1985) 40 Cal.3d 227, 231, 219 Cal.Rptr. 460, 707 P.2d 833 held that the trial court still retained authority to strike the section 667 enhancements in the interests of justice under section 1385.   In 1986, the Legislature enacted section 1385, subdivision (b), and eliminated the court's power to strike a prior serious felony conviction alleged under then section 667.   Indeed, it was the Legislature's intent to abrogate the holding in Fritz and restrict the court's authority to strike certain prior serious felony convictions.   This enactment withstood a separation of powers challenge in People v. Valencia (1989) 207 Cal.App.3d 1042, 255 Cal.Rptr. 180, which held that the “Legislature's power to limit trial court discretion in this way is beyond question.”  (Id. at p. 1045, 255 Cal.Rptr. 180.)

In 1989, the Legislature amended section 1170.1, subdivision (h).   It had previously permitted the court to strike certain specified enhancements if warranted by mitigating circumstances;  the amendment eliminated reference to section 12022.5 firearm use enhancement as one of the specified enhancements subject to striking.   While section 1170.1, subdivision (h) did not specifically refer to the court's power to strike under section 1385, Thomas held that a court no longer had such discretion to strike a firearm use enhancement after the amendment.  (People v. Thomas, supra, 4 Cal.4th at pp. 209–214, 14 Cal.Rptr.2d 174, 841 P.2d 159.)  “In light of the fact that the subject provision is included in a ‘package’ of provisions aimed at enhancing criminal liability for unlawful firearm use, we think it highly unlikely the Legislature intended nonetheless to preserve broad judicial authority under section 1385 to strike a firearm use enhancement ‘in furtherance of justice.’ ”  (Id. at p. 213, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

In 1990, the voters, again through the initiative process, enacted section 1385.1, which precludes a trial court from striking or dismissing any section 190.2 special circumstance allegation pursuant to section 1385.

Thus, based on the legislative and judicial developments which have transpired since Tenorio was decided, trial courts no longer have unlimited power that cannot be conditioned on the district attorney's concurrence.

Appellant's separation of powers argument is also without merit because the statutory provision reviewed in Tenorio differs significantly from the three strikes law.   The three strikes law, viewed as a whole, does not grant unfettered authority to the prosecution.   The prosecutor's discretion in dealing with prior felony convictions is significantly restricted.  Section 667, subdivision (g) categorically prohibits the use of prior felony convictions in plea bargaining.   Subdivisions (g) and (f)(1) of section 667 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 interests of justice.

The 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.  (People v. Tenorio, supra, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)   Rather, the statutory scheme represents tightened legislative control of the prosecution's charging function.

We thus conclude that based on the Supreme Court's subsequent decisions after Tenorio and the overall limitations on the prosecutor's discretion, the three strikes law does not offend the separation of powers doctrine.

D. Proposition 184

Finally, it is argued that the failure of the three strikes initiative, as codified in section 1170.12, to expressly prohibit the trial court's discretion to dismiss a strike, illustrates the electorate's intent to allow the court to retain such a discretion in three strikes cases.

 When a penal statute is amended so as to lessen punishment, the provisions are applied retroactively to benefit the defendant in pending cases.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434;  In re Estrada (1965) 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948.)   We disagree with the argument that passage of Proposition 184 was intended to favor defendants, or intended to remove the prohibition of dismissing strikes.   To adopt such a construction of the statute would “render its provisions ineffective or contrary to a stated legislative objective.”   (People v. Pieters (1991) 52 Cal.3d 894, 901, 276 Cal.Rptr. 918, 802 P.2d 420, citing People v. Craft (1986) 41 Cal.3d 554, 560, 224 Cal.Rptr. 626, 715 P.2d 585.)

The analysis and arguments contained in the ballot pamphlet make it abundantly clear that Proposition 184 was presented to the voters as an initiative that would not weaken the existing three strikes law as passed by the Legislature.   The initiative was presented as a measure that would have no impact, or might possibly “strengthen” the existing law.  “This measure proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.   Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.”  (Ballot Pamp., analysis of Prop. 184 by Legislative Analyst as presented to the voters, Gen. Elec. (Nov. 8, 1994) p. 33.)   Based on a reading of the ballot pamphlet and proposed initiative, a voter would have absolutely no indication that passage of Proposition 184 would result in an increase in the discretion afforded to the judiciary to dismiss prior strike convictions.   To adopt any other construction of the three strikes initiative could “render its provisions ineffective or contrary to a stated ․ objective.”  (People v. Pieters, supra, 52 Cal.3d at p. 901, 276 Cal.Rptr. 918, 802 P.2d 420.)

Having found that the legislative enactment of the three strikes law was intended to eliminate the court's discretion to dismiss a strike and that the initiative simply reaffirmed the existing law, we conclude that passage of Proposition 184, as codified in section 1170.12, does not permit a trial court to dismiss a strike under the three strikes law.

In the instant case, the trial court properly concluded that it did not have discretion to dismiss any of the prior “strike” convictions, and appellant was properly sentenced to a third strike term.

VI. & VII.***

DISPOSITION

Appellant's conviction and sentence in count III is reversed.   The convictions in counts I and II and the sentence imposed in count II are affirmed.   The sentence in count I is reversed and the matter remanded for resentencing in accordance with an unpublished portion of this opinion.

FOOTNOTES

FN1. Unless otherwise indicated, all references are to the Penal Code..  FN1. Unless otherwise indicated, all references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

HARRIS, Associate Justice.

STONE (WM.A.), Acting P.J., and DIBIASO, J., concur.