PEOPLE v. CAMPOS

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

The PEOPLE, Plaintiff and Appellant, v. Vincent CAMPOS, Defendant and Respondent.

No. B086077.

Decided: October 04, 1995

Gil Garcetti, District Attorney of Los Angeles County, George M. Palmer, Acting Head Deputy, Brentford J. Ferreira, Dirk L. Hudson, and Diana L. Summerhayes, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Kenneth McDonald, and Alex Ricciadulli, Deputy Public Defenders, for Defendant and Respondent.

In this “three strikes” case (Pen.Code, § 667, subds. (b)–(i).   Statutory references, unless otherwise noted, are to the Penal Code) we conclude:  (1) a trial court has no authority, on its own motion, to dismiss a qualifying “prior” (§ 667, subd. (d)) in the interest of justice (§ 1385);  (2) the absence of such power is not a violation of the separation of powers doctrine;  (3) a felony conviction is a qualifying “prior” (§ 667, subd. (d)) although not a “charge[ ] brought and tried separately” (§ 667, subd. (a)(1));  and (4) respondent has failed to establish that in this case, a 25–years–to–life sentence is “cruel or unusual punishment.”  (Cal. Const., art. I, § 17.)

In this People's appeal, we vacate the sentence and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 23, 1994,1 a Sav–On security officer saw appellant put Clearasil and hair rollers in his pockets and leave the store without paying for them.   He detained appellant, escorted him inside, and brought him to the office.   Appellant “pushed the manager” and was then handcuffed by the security officer.   The police were called and appellant was searched.   A hunting knife with a four-inch blade, in its “holster,” was removed from appellant's pocket.

By information, appellant was charged with petty-theft-with-a-prior-petty theft (§ 666;  count I) and carrying a concealed dirk or dagger (§ 12020, subd. (a);  count II).   Also alleged were three qualifying priors 2 (§ 667, subd. (d)), robbery convictions suffered October 29, 1990, all in case number YA005351.

Appellant pleaded not guilty and denied the priors.

Thereafter the trial court, in the interest of justice, dismissed the three priors (for purposes of § 667, subds. (b)–(i)).   Appellant then pleaded guilty to both counts and admitted the section 667.5, subdivision (b) allegation (involving the same three robbery convictions).   The trial court sentenced appellant to the high three-year term on count I, one-year consecutive for the section 667.5, subdivision (b) prior, and stayed a two-year term on count II.   The People appealed.

DISCUSSION

1. A trial court has no authority, on its own motion, to dismiss a qualifying “prior” (§ 667, subd. (d)) in the interest of justice (§ 1385).

 As we have recently held (People v. Bailey (1995) 37 Cal.App.4th 871, 44 Cal.Rptr.2d 205;  People v. Petty (1995) 37 Cal.App.4th 730, 44 Cal.Rptr.2d 34;  People v. Gore (1995) 37 Cal.App.4th 1009, 44 Cal.Rptr.2d 244), as have our colleagues in Division Two (People v. Glaster (1995) 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65) and Division Three 3 (People v. Loomis (1995) 37 Cal.App.4th 1781, 44 Cal.Rptr.2d 775), a trial court has no authority, on its own motion, to dismiss a qualifying “prior” in the interest of justice.

No purpose would be served by fully repeating our analysis and explanation.  (See People v. Bailey, supra;  People v. Petty, supra;  People v. Gore, supra;  People v. Glaster, supra;  People v. Loomis, supra.)   It suffices to note, as we stated in People v. Petty:  “[W]hen ‘three strikes' was enacted trial courts had no authority to dismiss serious priors in furtherance of justice.   That authority had been totally removed in 1986 by the enactment of section 1385, subdivision (b).   The enactment was held valid by People v. Valencia (1989) 207 Cal.App.3d 1042, 255 Cal.Rptr. 180.

“ ‘Three strikes' did not confer authority to either the trial court or the prosecutor.   It restricted the authority of both.”

2. Separation of powers doctrine.

 As People v. Glaster, supra, People v. Bailey, supra, and People v. Petty, supra, hold, section 667, subdivision (f)(2) does not violate the separation of powers doctrine.

Respondent's reliance upon People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, is misplaced.   When Tenorio was decided, trial courts had authority to dismiss priors in furtherance of justice.   When “three strikes” was enacted trial courts had no such authority.  “Three strikes” restricts the authority of both prosecutor and trial court.   It “insure[s] longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious ․ felony offenses” (§ 667, subd. (b)) by requiring the concurrence of prosecutor and trial court in order for a qualifying prior to be dismissed in the interest of justice (§ 667, subd. (f)(2)).   First, the prosecutor must exercise his/her discretion to make the motion and second, the trial court must exercise its discretion to grant the motion.

Section 667, subdivision (f)(2) does not violate the separation of powers doctrine.

3. A felony conviction is a qualifying “prior” (§ 667, subd. (d)) although not a “charge[ ] brought and tried separately” (§ 667, subd. (a)(1)).

 Respondent contends that his three robbery convictions constitute only one “strike” because they were not “brought and tried separately” (§ 667, subd. (a)(1)).   The trial court disagreed with respondent and so do we.

The statute makes clear that “a prior conviction of a felony” is solely determined by the definitions of section 667, subdivision (d).   That subdivision applies “notwithstanding any other law” (§ 667, subd. (d)).  There is nothing in subdivision (d) which restricts a prior conviction of a felony to a “charge[ ] brought and tried separately,” a restriction applicable to section 667, subdivision (a)(1) priors and which the Legislature could hardly have overlooked.   Additionally, the Legislature included an analogous restriction concerning current charges in subdivision (c)(6).4  Finally, the robbery convictions each involved a different victim and the punishment restrictions of section 654 do not apply to crimes of violence against different victims.  (People v. King (1993) 5 Cal.4th 59, 78, 19 Cal.Rptr.2d 233, 851 P.2d 27.)

4. Cruel or unusual punishment.

The trial court did not find that a 25–years–to–life sentence would constitute a cruel or unusual punishment.   It made no determination concerning that issue but instead “found” it would be in furtherance of justice to dismiss the three qualifying priors.   The two issues are separate.5

We find that respondent has failed to establish that, in this case, a 25–years–to–life sentence is cruel or unusual punishment.

 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 (1989) 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, supra, 1 Cal.App.4th at pp. 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.)   Respondent has failed to satisfy these burdens.

 Although a probation report, which included a summary of respondent's criminal record, was before the trial court, it has not been made part of the record on appeal.   Therefore, we know only some, not all, of respondent's criminal background.

This partial record shows the following:  respondent admitted being a cocaine and heroin abuser for the past nine years, using one or the other or both virtually every day;  respondent was and had been unemployed;  he was under the influence at the time of the current offenses;  prior to the current offenses respondent had served time in jail and in state prison, had been granted probation and parole;  and at the time of the current offenses respondent was on parole.

The facts underlying respondent's robbery convictions are these:  On September 13, 1990, at about 3:30 a.m., respondent and two confederates climbed through the livingroom window of an apartment in Hawaiian Gardens.   The occupants, three young women, were asleep in their separate bedrooms.   The first victim was awakened by the opening of her bedroom door.   She saw three men with shotguns, their faces covered by bandanas.   They asked for her money and took her watch and radio.   One robber guarded her while the other two went to the other bedrooms.   Victim two was similarly awakened and robbed.   Victim three was shaken awake by one of the robbers who pointed a shotgun at her and marched her to victim two's bedroom.   The three victims were forced to lie down on one bed, cover themselves, and be quiet.   The robbers then stole their computers, television sets, stereos, microwave oven, VCR, $5,000 Honda Accord, and $13,000 Acura Integra.   Before leaving, the robbers severed the telephone cord.

Under the circumstances reflected by the record on appeal, respondent has failed to show that this case and this defendant is that “exquisite rarity” (People v. Weddle (1991) 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.

DISPOSITION

The sentence is ordered vacated and the judgment reversed.

Because respondent pleaded guilty (and admitted the § 667.5, subd. (b) allegation) only after the qualifying priors had been dismissed and after being assured by the trial court he could withdraw his plea should the People's appeal be sustained, the trial court shall permit respondent to withdraw his guilty plea and prior allegation admission.

I respectfully dissent.

While this case presents some difficult and highly technical legal issues, the real issue in this case is whether Vincent Campos should serve the rest of his life in prison for shoplifting a bottle of acne medicine and some hair curlers.   The trial court did not believe he should.   Therefore, in order to avoid having to impose such a sentence under California's “three-strikes” law,1 the court on its own motion dismissed the allegations regarding Campos' prior “strikes” in the furtherance of justice.  (Pen.Code § 1385, subd. (a).) 2  The court then sentenced Campos to a four-year prison term.   The People appeal this allegedly unlawful sentence on the ground only the prosecutor has the authority to move to dismiss prior convictions in the furtherance of justice and in this case the interests of justice are best served by sentencing Campos to a term of 25 years to life.   In my view, the trial court had the power to dismiss the prior felony allegations on its own motion.   Furthermore, under the circumstances of this case, imposing a sentence of 25 years to life would have violated the constitutional ban on cruel or unusual punishments.  (Cal. Const., art. I, § 17.)   Therefore, whether or not the trial court had the power to dismiss the priors, it acted correctly in not sentencing defendant to life in prison under the “three strikes” law.

I. THE TRIAL COURT RETAINED THE DISCRETION UNDER PENAL CODE SECTION 1385 AND THE “THREE STRIKES” LAW TO DISMISS, ON ITS OWN MOTION, A PRIOR FELONY CONVICTION IN THE INTERESTS OF JUSTICE.

The People contend the trial court had no power to act on its own motion to dismiss allegations of prior felony convictions in the interests of justice.   They base this contention on the language of section 1385 subdivision (b) and provisions of the “three strikes” law itself (§ 667, subds. (b)–(i)).   As I explain more fully below, section 1385, subdivision (b) did not deprive the trial court of its authority to dismiss a prior conviction on its own motion under section 1385, subdivision (a) because the restriction on dismissing priors contained in subdivision (b) of that section only applies to enhancements while the provisions of section 667, subdivisions (b)–(i) refer not to enhancements but to the base term itself.   Furthermore, the Legislature, in enacting the “three strikes” law, did not clearly evidence an intent to deprive the trial courts of their power to dismiss a prior conviction under section 1385, subdivision (a).

A. The Applicable Statutes.

The Trial Court's Power to Dismiss Priors in the Furtherance of Justice Section 1385).

The trial court's power to dismiss an action on its own motion “in furtherance of justice” has been part of California's statutory law since the first session of the Legislature in 1850.   This power was codified as section 1385 of the Penal Code in 1872 and remained substantially unchanged until 1986 when the existing statutory language was designated subdivision (a) and a new subdivision (b) was added limiting the trial court's power to strike a prior conviction under certain circumstances.  (People v. Williams (1981) 30 Cal.3d 470, 478, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)   At the present time, section 1385 provides in relevant part:

“(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.

(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.”  (Italics added.)

Although subdivision (a) speaks of dismissing an “action,” it has long been interpreted to authorize the trial court to strike, set aside or dismiss a charge of a prior conviction at the time sentence is imposed on the current conviction.  (People v. Williams, supra, 30 Cal.3d at pp. 478–479, 179 Cal.Rptr. 443, 637 P.2d 1029.) 3

 The “Three Strikes” Law (§ 667, subdivisions (b)–(i)).

In March 1994, the Governor signed into law Assembly Bill No. 971, commonly known as the “three strikes” law.  (§ 667, subds. (b)–(i).)   The undisputed purpose of the “three strikes” law is to increase the sentences which would otherwise be imposed on those convicted of any felony if they have previously been convicted of one or more serious or violent felonies (“strikes”).4

The sentencing provisions of the “three strikes” law are contained in section 667, subdivision (e), which provides in relevant part:

“For purposes of [this section], and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:

“(1) If a defendant has one prior [serious or violent] felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

“(2)(A) If a defendant has two or more prior [serious or violent] felony convictions ․ that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of ․ (ii) Imprisonment in the state prison for 25 years.” 5

The provision of the “three strikes” law dealing with dismissals of priors in the interest of justice is found in section 667, subdivision (f)(2) which provides:

“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.”

The question posed in this case is whether dismissal on the motion of the prosecutor is the only method by which allegations of prior convictions can be dismissed in the interest of justice for purposes of the “three strikes” law.

B. Section 1385, Subdivision (b), Does Not Prohibit the Trial Court From Dismissing the Allegation of a Prior Strike for Purposes of Determining the Base Term of Defendant's Sentence Under the “Three Strikes” Law.

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.   This power includes the power to dismiss or strike a prior conviction for purposes of determining a defendant's sentence.   (People v. Williams, supra, 30 Cal.3d at pp. 478–479, 179 Cal.Rptr. 443, 637 P.2d 1029.)  Section 1385, subdivision (b), however, restricts the power conferred under subdivision (a).   Subdivision (b) provides the court's power to strike or dismiss a prior conviction does not include the power to strike “any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”   When the Legislature passed the “three strikes” law, it placed its provisions in section 667.6  Therefore, the People conclude, the trial court in this case was prohibited by section 1385, subdivision (b) from striking defendant's prior robbery convictions for purposes of imposing sentence under section 667, subdivision (e)(1).   Furthermore, because the trial court had no power to strike defendant's previous felony conviction on its own motion prior to enactment of the “three strikes” law, (that power having been removed previously by subd. (b) of § 1385) the provision of section 667, subdivision (f)(2) authorizing the court to strike a felony conviction only on the motion of the prosecutor does not raise a separation of powers problem.   The trial court had no separate power to be impaired.

The flaw in the People's analysis of section 1385 is that subdivision (b) by its terms only prohibits dismissing prior “strikes” “for purposes of enhancement of a sentence under section 667.”  (Italics added.)   The prohibition of subdivision (b) does not apply to the base term prescribed as punishment for the offense.   Therefore, it does not apply to section 667, subdivision (e)(1) which specifies the base terms for sentences, not enhancements.

A “term” or “base term” is the punishment prescribed for the underlying crime while an “enhancement” is “ ‘an additional term of imprisonment added to the base term.’ ”  (People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013;  quoting Cal.Rules of Court, rule 405(c).)   Although enhancements often focus on the criminal history of the defendant, not every statute which increases the punishment for recidivist conduct is an enhancement.   For example, in People v. Skeirik (1991) 229 Cal.App.3d 444, 280 Cal.Rptr. 175 the court was called upon to construe section 667.7 which imposes an indeterminate life sentence for specified offenses where the defendant has suffered two or more prior convictions for similar offenses.   The court held the statute defined the penalty for the current offense, and was not an enhancement.  “[The statute] speaks not of enhancement but of a separate term of imprisonment for recidivist conduct.”  (Id. at p. 466, 280 Cal.Rptr. 175.)

Here, the statutory scheme of section 667 itself illustrates the difference between an enhancement and the base term of the offense.  Section 667, subdivision (a), provides:

“[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction․”  Section 667, subdivision (e)(1) provides:

“If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

Thus, subdivision (a) is clearly an enhancement provision.   It not only uses the word “enhancement,” it provides that the punishment prescribed therein is “in addition to the sentence imposed by the court for the present offense.”   Subdivision (e)(1), on the other hand, does not provide for any kind of added punishment.   Instead, it defines the term of the punishment itself, supplanting the term which would apply but for the prior serious or violent felony.   In the present case, subdivision (e)(2) supplanted the term that would otherwise apply for petit theft with a prior or possession of a concealed dagger (16 months–2 years–4 years) with an indeterminate term of 25 years to life for that offense.7

My conclusion the sentencing provisions of section 667, subdivision (e) do not constitute an enhancement is supported by several appellate decisions reaching the same conclusion.  (E.g., People v. Anderson (1995) 35 Cal.App.4th 587, 595, 41 Cal.Rptr.2d 474, [“While [section 667] subdivision (a)(1) is an enhancement, subdivisions (b) to (e) constitute a separate sentencing formulation.”];  People v. Ramirez (1995) 33 Cal.App.4th 559, 566, 39 Cal.Rptr.2d 374 [subd. (e)(1) “prescribes a doubling of the sentence for the current felony offense in addition to the five-year enhancement” under subdivision (a).  (Italics in original) ];  People v. Martin, supra, 32 Cal.App.4th at p. 668, fn. 7, 38 Cal.Rptr.2d 776 [“[W]e conclude that section 667, subdivision (e)(1) does not provide for an enhancement․”] )

In summary, section 1385, subdivision (b) only applies to enhancements;  the sentence imposed on defendant under section 667, subdivision (e) was not an enhancement;  therefore section 1385, subdivision (b) did not preclude the trial court from exercising its discretion under subdivision (a) to dismiss the allegation of prior “strikes” for purposes of determining the base term of defendant's sentence.

C. In Enacting the “Three Strikes” Law, the Legislature Did Not Clearly Evidence an Intent to Deprive the Trial Courts of Their Power to Dismiss a Prior Conviction on Their Own Motion Under Section 1385, Subdivision (a).

Because the trial court's power is not restricted by section 1385, subdivision (b), it necessarily follows any limitation on the court's power must be found in the “three strikes” law itself.   The People purport to find that limitation in section 667, subdivision (f)(2), which, they contend, permits the trial court to dismiss a prior conviction in the interests of justice only on motion of the prosecutor and not on the court's own motion.   If this is the correct interpretation of subdivision (f)(2), then that provision is unconstitutional as a violation of the separation of powers clause of the California Constitution.  (See discussion below.)   However, “[s]tatutes are to be so construed, if their language permits, as to render them valid and constitutional rather than invalid and unconstitutional.”  (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.)   I believe subdivision (f)(2) can be given a constitutional construction.

Nothing in subdivision (f)(2) specifically prohibits the trial court from dismissing a prior conviction on its own motion in the interests of justice.   Rather, the People infer that because the subdivision specifically authorizes the prosecutor to make such a motion a prohibition on the court making such a motion must be implied;  expressio unius est exclusio alterius.   This inference is contrary to the Supreme Court's often-repeated view that an intent to remove the trial court's power to dismiss under section 1385 must be “clearly evidenced.”

In People v. Williams, supra, 30 Cal.3d at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029, the Court traced the history of the trial court's dismissal power under section 1385 and concluded:  “Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.”  (Id. at p. 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The Court applied this rule most recently in People v. Thomas (1992) 4 Cal.4th 206, 210–211, 14 Cal.Rptr.2d 174, 841 P.2d 159, concluding that in amending section 1170.1 the Legislature clearly evidenced an intent to withdraw the trial court's authority to dismiss an additional enhancement in cases involving the personal use of a firearm in the commission of a felony.

The question is whether, in enacting section 667, subdivision (f)(2), the Legislature clearly evidenced an intent to prohibit the trial court from dismissing a prior felony conviction on its own motion in the interests of justice.

The Supreme Court has found clear evidence of intent to prohibit the trial court from exercising its general dismissal authority under section 1385 when the Legislature deleted specific dismissal authority from another statute.   In People v. Thomas, supra, 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159, the court addressed section 1170.1, subdivision (h) which specifically provides the trial court with authority to strike the additional punishment for enhancements contained in a list of enhancement sections.   Prior to 1989, section 12022.5 was one of the enhancement sections included in section 1170.1, subdivision (h).   In 1989, however, section 12022.5 was deleted from the list of enhancement sections which the trial court had specific authority to dismiss under section 1170.1.   The issue in Thomas was whether, despite the amendment to section 1170.1, the trial court retained the power to dismiss section 12022.5 enhancements under its general power to dismiss contained in section 1385.   The Supreme Court held it did not.   The Court reasoned deleting the trial court's dismissal power under section 1170.1 would make no sense if the trial court retained the same power under section 1385.   The Legislature's failure to likewise amend or refer to section 1385 was, at most, a drafting oversight.   Furthermore, the Court pointed out the legislative history explicitly stated the purpose of the amendment to section 1170.1 was to “delete [the] authorization” to dismiss enhancements under section 12022.5.  (People v. Thomas, supra, 4 Cal.4th at pp. 209–211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

In People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the high court held a statutory amendment containing a flat prohibition on granting probation to anyone who used a firearm in the commission of certain listed felonies overrode the trial court's authority under section 1385 to dismiss the use allegation in order to grant the defendant probation.   Allowing the trial court to strike the use allegation in the interest of justice under section 1385 would have the effect of restoring the law regarding probation to what it was before the amendment, thus rendering the amendment a nullity.   In addition, there was legislative history showing the specific purpose of the amendment was to deny probation “without any exception [for] the interests of justice.”  (Id. at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)   Clearly, allowing the trial court to dismiss a use allegation in the interests of justice under section 1385 would be contrary to the manifest intent of the Legislature to deny probation to users of firearms.

Tanner was distinguished in People v. Williams, supra, 30 Cal.3d at pp. 483–484, 179 Cal.Rptr. 443, 637 P.2d 1029 which held the statutory mandate that the penalty for first degree murder with special circumstances “shall be death or confinement ․ for a term of life without possibility of parole” did not prevent the trial court from exercising its power under section 1385 to dismiss a finding of special circumstances.   The Court stated “it is clear from the [Tanner ] opinion that the mere use of mandatory language in the statute does not indicate that section 1385 is inapplicable.”   (Id. at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029.)   Moreover, the Court concluded that, unlike the statute in Tanner which specifically limited the power of dismissal for purposes of parole, nothing in the statutes at issue in Williams purported to limit the trial court's power to dismiss special circumstances findings in order to permit the possibility of parole.  (Id. at p. 484, 179 Cal.Rptr. 443, 637 P.2d 1029.)   Finally, unlike Tanner, there was no showing of a specific legislative intent to restrict the trial court's dismissal powers.   The Court noted, “There is no discussion of section 1385 or the court's power to dismiss a special circumstance allegation.”  (Id. at p. 485, 179 Cal.Rptr. 443, 637 P.2d 1029;  emphasis in original.)

In People v. Fritz (1985) 40 Cal.3d 227, 230, 219 Cal.Rptr. 460, 707 P.2d 833, the Court characterized its decision in Williams as sending an “unmistakable signal to drafters of sentencing provisions of the need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended.”   The Fritz decision also repeated the Court's holding in Williams that merely providing a defendant “shall” receive a certain punishment is not sufficient to eliminate a trial court's power to strike under section 1385.  (Id. at p. 231, 219 Cal.Rptr. 460, 707 P.2d 833.)

Turning to section 667, subdivision (f)(2), I find no clear evidence the Legislature intended to preclude the trial court from exercising on its own motion the power to dismiss a prior conviction for purposes of determining the base term of a sentence.   Nothing in subdivision (f), or anywhere else in the “three strikes” law, makes any reference to the trial court's power to dismiss prior convictions on its own motion in the interest of justice.   Nor did the “three strikes” legislation repeal any previously existing statutory authority allowing the court to dismiss prior convictions.   Although a legislative analysis prepared for the Senate Judiciary Committee suggests A.B. 971 would preclude the trial court from dismissing prior “strikes,” the report suggests this was an unintended consequence of the legislation.  (See discussion below at pp. 717–718.)

The trial court's continued authority to dismiss a prior conviction in the interests of justice does not nullify the legislative intent 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).)  If the Legislature had intended no prior conviction be dismissed in the interests of justice it could have so provided as it did when it wanted to deny probation to firearm users.  (Tanner, supra, 24 Cal.3d at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)   Instead, the Legislature specifically recognized in subdivision (f)(2) that some defendants would be spared longer prison sentences and greater punishment by reason of dismissal of their priors in the furtherance of justice.

The reason why subdivision (f)(2) only refers to motions by the prosecutor to dismiss priors in the furtherance of justice and fails to mention dismissals on the court's own motion becomes clear when subdivision (f) is read as a whole.   It is then immediately apparent the subject of the entire subdivision is the power of the prosecutor with respect to pleading and proving prior convictions.   Subdivision (f)(1) provides:  “The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).”  (Italics added.)   Paragraph (2) provides the prosecuting attorney may move to dismiss a prior felony conviction in the furtherance of justice or on the ground of insufficiency of the evidence.   Subdivision (f) represents a significant change in how the prosecution handles prior convictions.   It requires the prosecutor to plead and prove every known prior felony conviction.   In all other situations involving a statute increasing punishment for a prior conviction, the prosecution has the discretion to decline to file qualifying priors of which it is aware.   Here, the prosecutor's only discretion lies in moving to dismiss the prior in the interests of justice or for insufficiency of the evidence.

It is not at all surprising a subdivision which has as its subject the power of the prosecutor would not mention the power of the trial court, except in relation to the prosecutor's power.   Thus, the failure of subdivision (f)(2) to mention the trial court's own power to dismiss does not support a conclusion the Legislature intended to negate that power.

The People claim clear evidence of the Legislature's intent to restrict the trial court's power to dismiss can be found in other provisions of the “three strikes” law and its legislative history.

One source of this intent, the People argue, is found in section 667, subdivision (c) which states:  “[n]otwithstanding any other law” the court shall adhere to the sentencing provisions of subdivisions (c) to (e).   The People interpret the phrase “notwithstanding any other law” to mean section 1385 is inapplicable to sentencing decisions under the “three strikes” law.   I find two serious problems with this interpretation.   If, as the People contend, “the full extent” of the court's power to dismiss priors in the interests of justice “resides in section 1385,” and section 1385 does not apply to sentencing under the “three strikes” law, from where does the court derive its power to dismiss priors on motion of the People?   Furthermore, the People's interpretation would require the courts to ignore not only section 1385 but “any other law” dealing with sentencing including laws imposing sentence enhancements as well as the death penalty.   I seriously doubt the Legislature had this in mind when it enacted the “three strikes” law.

The People next argue an intent to restrict the trial court's ability to dismiss allegations of priors on its own motion can be gleaned from section 667, subdivision (c)(2).   This provision states:  “Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.”  (Italics added.)   Because the only authorized procedure for not imposing sentence on a prior conviction at the time of sentencing is to strike the prior, the People argue the language highlighted above, “while inartful,” must mean the Legislature intended to prohibit the trial court from striking prior offenses which qualify the defendant for sentencing under the “three strikes” law.   I find no merit in this argument.

If the Legislature wished to deprive the trial court of the power to dismiss allegations of prior convictions on its own motion under section 1385, it knew how to do so.   In section 1203.066, subdivision (a), for example, the Legislature stated:  “․ probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following [sex offenders].”  (Italics added.)   The highlighted language used in section 1203.066, subdivision (a) is not included in section 667, subdivision (c)(2).

Although the Legislature need not specifically refer to section 1385 in order to preclude its operation, (People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159), it must clearly evidence such an intent.  (Ibid.)  While it is true a trial court may strike an enhancement at the time of sentencing under section 1385 (People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1123, 231 Cal.Rptr. 387), this cannot be the power the Legislature was attempting to limit in section 667, subdivision (c)(2).   In the current case, the trial court is not sentencing the defendant on a “prior offense.”   Whatever the purpose of subdivision (c)(2) is, beyond prohibiting probation, the intent to preclude the operation of section 1385 is not “clearly evidenced.” 8

Finally, the People contend the legislative history of the “three strikes” law supports the conclusion the Legislature intended to preclude the operation of section 1385.   The People rely on a committee analysis of AB 971 prepared by the Senate Judiciary Committee.   This analysis states, in part, “Section 1385 prohibits the judge from striking prior convictions of serious felonies for the purposes of enhancement under Section 667, the section which this bill amends, and therefore Section 1385 may not be invoked.”  (Id. at pp. 7–8.)   However, the analysis goes on to explain, as I noted above, the legislation only authorizes the prosecutor to move for dismissal in the interests of justice.  “Thus, there is no provision for either the district attorney or judge to dismiss or strike a prior felony conviction in the furtherance of justice.”  (Id. at p. 8.)   The Judiciary Committee's analysis concludes:  “Thus, this bill appears to be constitutionally infirm in that it would require cruel and unusual punishment in some cases, with no option for a lesser sentence in the interest of justice.”  (Ibid.)  If one were to accept this committee analysis of the bill as reflecting the legislative intent, one also would have to conclude the Legislature intended to enact a statutory provision which authorized the prosecutor to move to dismiss priors but denied the trial court the power to grant the motion and which, in addition, was admittedly unconstitutional as to some defendants because it imposed cruel or unusual punishment.   I find the committee analysis of AB 971 to be an unreliable source of legislative intent on the issue of dismissing priors and decline to follow it.9

II. SECTION 667, SUBDIVISION (f)(2) IS UNCONSTITUTIONAL TO THE EXTENT IT GRANTS THE PROSECUTOR A VETO POWER OVER THE TRIAL COURT'S EXERCISE OF ITS DISCRETION TO DISMISS THE ALLEGATION OF A PRIOR FELONY CONVICTION FOR SENTENCING PURPOSES.

Although I believe section 667, subdivision (f)(2), if properly construed, leaves intact the trial court's power to dismiss a prior conviction on its own motion in furtherance of justice, if subdivision (f)(2) does require the court to obtain the prosecutor's approval to dismiss a prior conviction then that subdivision violates the separation of powers clause of the California Constitution.  (Cal. Const., art. III, § 3.) 10

The Supreme Court has held the Legislature may enact a specific sentencing statute which overrides the trial court's general power under section 1385 to strike prior convictions in the furtherance of justice.  (See discussion supra at pp. 714–716.)   However, no Supreme Court decision holds the Legislature may enact a sentencing statute which conditions the trial court's exercise of its general power to strike prior convictions on obtaining the approval of the prosecutor.11  To the contrary, the Supreme Court has consistently struck down, as a violation of the constitutional separation of powers, any attempt to confer on the prosecution a veto power over the trial courts' exercise of sentencing discretion.  (People v. Tenorio, supra, 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 473 P.2d 993 [prosecution consent to dismissal of prior convictions];  Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 [prosecution consent to treat “wobbler” as a misdemeanor];  People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481 [prosecution consent to commitment of drug offender to treatment facility].)  These decisions firmly establish the rule in this state the exercise of sentencing discretion cannot be made subject to the consent of the prosecutor because requiring prosecutorial consent unconstitutionally injects the executive branch into what are “fundamentally and inherently judicial functions.”  (People v. Navarro, supra, 7 Cal.3d at p. 258, 102 Cal.Rptr. 137, 497 P.2d 481.)

The Tenorio decision is directly on point.   In Tenorio the defendant challenged, on separation of powers grounds, the constitutionality of a sentencing statute which provided no prior conviction affecting the sentence for the current offense “may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.”  (Id. at p. 91, 89 Cal.Rptr. 249, 473 P.2d 993.)   The Court found this provision authorized the executive branch of government to invade the province of the judicial branch “because it grants to the prosecutor the unreviewable power to grant or to prevent a judicial resolution of a motion to strike priors․”   (Id. at p. 93, 89 Cal.Rptr. 249, 473 P.2d 993.)   The Court explained:

“When an individual judge exercises sentencing discretion, he exercises a judicial power which must be based upon an examination of the circumstances of the particular case before him, and which is subject to review for abuse.  [¶] In marked contrast, the discretion under section 11718 purports to vest in prosecutors is unreviewable, and may therefore be exercised in a totally arbitrary fashion both in individual cases and by the adoption of county-wide policies precluding dismissal of priors regardless of the circumstances of individual cases.   Clearly, analogies to judicial sentencing discretion ․ cannot justify vesting in a partial advocate, the prosecutor, the power to prevent the exercise of ․ judicial discretion.”  (Id. at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)

Although worded differently, the effect of section 667, subdivision (f)(2) is precisely the same as the statute struck down in Tenorio.   Under both statutes, a prior conviction can only be dismissed in the interests of justice on the prosecutor's motion.   Thus, the trial judge in the present case, who believed a charge should be dismissed in the interests of justice and who wished to exercise the power to dismiss, would find himself stymied by the prosecutor's unwillingness to file a motion requesting dismissal.

Under the binding precedent of Tenorio, section 667, subdivision (f)(2) is unconstitutional to the extent it requires the trial court to obtain the prosecutor's consent before dismissing a prior conviction in the interests of justice.

The People argue Tenorio and its progeny are not binding precedent in the case before us because the statutory scheme of the “three strikes” law distinguishes it from the laws struck down by the Tenorio line of cases and the rationale of Tenorio has been seriously undercut by subsequent developments in the law.   Neither of these arguments has merit.

As to the first argument, the People adopt and elaborate on the analysis of section 667 as a limitation on prosecutorial power.  (See discussion supra, pp. 716–717.)   The People contend the “three strikes” law, taken as a whole, restricts rather than enlarges prosecutorial discretion with respect to dismissals of priors in the furtherance of justice.   Subdivision (g) of section 667 requires the prosecutor to plead and prove “all known prior felony convictions” and prohibits the prosecutor from using prior felony convictions in plea bargaining or from seeking the dismissal of a prior felony conviction “except as provided in paragraph (2) of subdivision (f).”   Thus, unlike other situations in which the prosecution has discretion not to charge a prior conviction, under the “three strikes” law the prosecution must charge all known prior felony convictions.   The prosecutor has no authority to agree to striking a prior for purposes of plea bargaining.   The only way a prior can be dismissed is on motion of the prosecutor who must satisfy the court there is insufficient evidence to prove the prior conviction or that dismissal would be in the furtherance of justice.  (§ 667, subd. (f)(2).)   The People argue the lack of any discretion on the part of the prosecutor in charging and negotiating prior felony convictions coupled with the requirement of court approval for dismissal of a prior distinguishes the “three strikes” law from the “arbitrary” and “unreviewable” discretion vested in the prosecutor in the statute at issue in Tenorio, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.

I find the People's argument unpersuasive for two reasons.

The fact the “three strikes” law restricts prosecutorial discretion with respect to handling prior convictions is totally irrelevant to the separation of powers issue.   We are not concerned in this case with the extent to which the Legislature has restricted executive power but with whether it has unconstitutionally restricted judicial power.   There is no merit in the argument the Legislature may constitutionally grant the prosecutor a veto power over the trial court's discretion to dismiss a prior if it also imposes restrictions on the prosecutor's discretion to charge a prior.   As the Court explained in Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993:

“When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.   Just as the fact of prosecutorial discretion prior to charging a criminal offense does not imply prosecutorial discretion to convict without a judicial determination of guilt, discretion to forego prosecution does not imply discretion to sentence without a judicial determination of those factors which the Legislature has never denied are within the judicial power to determine and which relate to punishment.   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.   The judicial power must be independent, and a judge should never be required to pay for its exercise.”

Furthermore, the discretion section 667, subdivision (f)(2) purports to vest in prosecutors vis a vis dismissals of priors is just as unreviewable and arbitrary as it was in the statute struck down in Tenorio.   Under both statutes the only way a prior can be dismissed is on motion of the prosecutor.   If the prosecutor does not move for dismissal, the trial court is powerless to dismiss.   Under section 667, subdivision (f)(2), the prosecutor's decision whether to move for dismissal is unreviewable and may be exercised in a totally arbitrary fashion.

The People's argument Tenorio has been undercut by subsequent statutes and court decisions is also unpersuasive.   As I explain more fully below, none of these statutes or the decisions upholding them involved prosecutorial vetoes of trial court discretion.

In 1970, when Tenorio was decided, a trial court's discretion to dismiss prior conviction allegations in the furtherance of justice was unlimited by statute or case law.   However, in 1975 the Legislature enacted section 1203.06 which precluded the trial court from granting probation or suspending execution of a sentence for any defendant found to have used a firearm in the commission of designated offenses.   The question arose whether section 1203.06 precluded the trial court from exercising its authority under section 1385 to strike the use finding and proceed to suspend sentence and grant probation.   In People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the Supreme Court held even though the Legislature did not specifically preclude the trial court from exercising its discretion under section 1385, the legislative intent to preclude striking the use finding was clear and therefore section 1385 was inapplicable under the circumstances covered by section 1203.06.  (Id. at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328.)

As previously noted, in 1986 the Legislature added a new subdivision (b) to section 1385 precluding the trial court from striking a prior conviction of a serious felony for purposes of a section 667 enhancement.   The validity of this restriction was upheld in People v. Valencia, supra, 207 Cal.App.3d 1042, 255 Cal.Rptr. 180.

In 1989 the Legislature amended section 1170.1, subdivision (h) which permits the trial court to strike certain listed enhancements if warranted by mitigating circumstances.   Under the statute as amended, firearm use enhancements were deleted from the list of enhancements the trial court had discretion to strike.   Again, the Supreme Court held the Legislature's intent to preclude the exercise of trial court discretion under section 1385 was clear.  (People v. Thomas, supra, 4 Cal.4th at pp. 211–213, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

Finally, in 1990, section 1385.1 was enacted by initiative to provide:  “Notwithstanding Section 1385 or any other provisions of law, a judge shall not strike or dismiss any special circumstance which is admitted by a plea of guilty or nolo contendere or is found by a jury or court as prescribed in Sections 190.1 to 190.5, inclusive.”   No published opinion has interpreted this statute.

The People cite the foregoing legal history to demonstrate that contrary to the state of the law at the time Tenorio was decided, the Legislature, the people by initiative, and the high court have since then limited the trial court's discretion under section 1385 to dismiss allegations of prior felony convictions.

The People, however, ignore a crucial distinction between the statutes they cite in their history and the statute involved in the present case.   None of the statutes referred to by the People involved a prosecutorial veto over the trial court's discretion to dismiss under section 1385, subdivision (a).   Rather, each statute precluded the trial court from exercising its discretion to dismiss under section 1385, subdivision (a).   If section 667, subdivision (f)(2) had barred any dismissal of prior “strikes” in the interest of justice, the cases cited by the People might well support the validity of such a blanket prohibition.   But section 667, subdivision (f)(2) does not bar the dismissal of prior “strikes;”  it specifically authorizes such dismissals for lack of evidence or in the interest of justice.   This authorization, however, is restricted by the requirement the court obtain the prosecutor's approval before dismissing a prior strike.   Thus, the present case is controlled by the Tenorio line of cases, not by the Tanner line.

It might be argued if the Legislature has the power to preclude the trial court from dismissing a prior strike, it has the power to set limits on the trial court's dismissal of a prior strike such as requiring the trial court to obtain prior approval for the dismissal from the prosecutor.   This argument was answered in Esteybar v. Municipal Court, supra, 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140.   The issue in Esteybar was the constitutionality of section 17, subdivision (b)(5) which, at the time, provided a magistrate could declare a wobbler a misdemeanor “at or before the preliminary examination ․ with the consent of the prosecuting attorney.”   (Id. at p. 122, fn. 1, 95 Cal.Rptr. 524, 485 P.2d 1140.)   The People argued that because the Legislature was not required to give this power to magistrates, it could therefore “condition the exercise of the power in any manner it wishes.”  (Id. at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)   The Court rejected this argument, explaining:

“Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violates the doctrine of separation of powers.   While it may be conceded that the Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon the approval of the district attorney.”  (Ibid.)

For the reasons set forth above, I conclude section 667, subdivision (f)(2) would violate the separation of powers provision of the California Constitution if it is interpreted as requiring the consent of the prosecutor before the trial court may exercise its authority to dismiss an allegation of a prior “strike.”

III. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN DISMISSING THE PRIORS BECAUSE A LIFE SENTENCE FOR SHOPLIFTING HAIR CURLERS AND ACNE MEDICINE WOULD BE A CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY THE CALIFORNIA CONSTITUTION.

The People contend even if the trial court had discretion to dismiss the prior felony allegations “in furtherance of justice,” it abused its discretion in doing so in this case.   Again, I disagree.

Although dismissal “in furtherance of justice” has been described as an “amorphous concept,” (People v. Orin (1975) 13 Cal.3d 937, 945, 120 Cal.Rptr. 65, 533 P.2d 193) no reasonable person would contend it was an abuse of discretion for the court to dismiss a defendant's prior convictions in order to avoid imposing a constitutionally prohibited punishment.12  Nor would any reasonable person deny that if defendant was a first-time offender a sentence of life in prison 13 for shoplifting or carrying a concealed hunting knife would constitute cruel or unusual punishment.

I recognize, of course, defendant is not a first-time offender;  he has three robbery convictions on his record.   Thus, the life sentence the People seek is not the product of an isolated instance of shoplifting but is the result of defendant's conviction of that minor crime after being convicted of three serious felonies, albeit arising out of a single incident.14

While defendant's past offenses are a relevant consideration, they do not “result in a pro tanto repeal of the cruel or unusual punishment clause.”   (In re Lynch, supra, 8 Cal.3d at p. 432, 105 Cal.Rptr. 217, 503 P.2d 921.)   Every defendant facing life imprisonment under the “three strikes” law will somewhere in the past have committed at least two serious or violent felonies.   This fact alone is not dispositive.   Even though a state is justified in punishing a recidivist more severely than it punishes a first-time offender, (Rummel v. Estelle (1980) 445 U.S. 263, 276, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382;  People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406), it is well-established recidivist statutes must undergo the same constitutional scrutiny as every other sentencing statute.  (See, e.g., Solem v. Helm (1983) 463 U.S. 277, 296, 103 S.Ct. 3001, 3012, 77 L.Ed.2d 637 and In re Lynch, supra, 8 Cal.3d 410, 425–429, 105 Cal.Rptr. 217, 503 P.2d 921 striking down life terms for recidivists as cruel and unusual punishment.)

The United States and California Supreme Courts have promulgated a three-pronged analysis for determining whether a particular sentence is a cruel and unusual punishment for a particular crime:  (1) the nature of the offense and the offender, with particular regard for the degree of danger they both present to society;  (2) whether the defendant has been treated in the same manner as, or more severely than, criminals who have committed more serious crimes;  (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions.  (Solem v. Helm, supra, 463 U.S. at p. 290–300, 103 S.Ct. at p. 3009–3014;  In re Lynch, supra, 8 Cal.3d at pp. 426–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

In Solem v. Helm, the United States Supreme Court set aside a sentence of life imprisonment without possibility of parole where the crime which resulted in that sentence was writing a bad check for $100.   Helm had three prior convictions for burglary, one of obtaining money by false pretenses, one of grand larceny and one of drunk driving.   The court concluded, on the basis of the factors described above, Helm's sentence was “significantly disproportionate to his crime and is therefore prohibited by the Eighth Amendment.”  (463 U.S. at p. 303, 103 S.Ct. at p. 3016.)   In In re Lynch, the California Supreme Court declared unconstitutional a statute which made a second offense of indecent exposure punishable by imprisonment for one year to life.   Applying the three factors above, the court concluded “the vast disproportion between the conduct of which petitioner was convicted and the punishment he has suffered” violated the California Constitution's prohibition on cruel and unusual punishment.  (Id. at pp. 438–439, 105 Cal.Rptr. 217, 503 P.2d 921.)

Applying this three-pronged analysis to the present case, I conclude a sentence of life imprisonment is so grossly disproportionate to the severity of defendant's crimes and the risk he poses to society as to constitute cruel or unusual punishment.

In examining the nature of defendant's prior felonies, courts consider “not only the offense in the abstract—i.e., as defined by the Legislature—but also ‘the facts of the crime in question’ [citation] ․—i.e., the totality of the circumstances surrounding the commission of the offense ․ including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.”  (People v. Dillon (1983) 34 Cal.3d 441, 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   In examining the nature of the defendant we ask “whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”  (Id. at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)

A critical fact in this case is that defendant accumulated his three “strikes” in one at bat.   A defendant who suffers multiple convictions in one proceeding for offenses committed on the same occasion and arising out of the same set of operative facts stands in different shoes from the typical recidivist who commits crime after crime after crime in total disregard of the punishment imposed.   So far as the record shows, this defendant committed no serious or violent felonies before or after the one incident in which he and his companions robbed the three roommates.   Thus, it would appear defendant is not the dangerous sort of criminal the “three strikes” legislation was intended to remove from society.15

The next inquiry is whether defendant is being treated under the law in the same manner as, or more severely than, criminals who have committed more serious crimes.   As to the first two “strikes,” all offenders are treated equally because the first two strikes must be serious or violent felonies as defined in the statute.  (§ 667, subd. (d)(1).)   The crucial third “strike,” however, may be any felony.  (§ 667, subd. (e)(2)(A).)  This is where proportionality may break down because two defendants with identical priors receive the same life sentence even if one defendant's current felony is rape, robbery or arson and the other defendant's current felony is shoplifting.16  Furthermore, the shoplifter with two prior strikes is sentenced to a greater indeterminate term (25 years to life) than a person convicted of second degree murder (15 years to life).  (§ 190, subd. (a).)  And, due to the restriction on conduct credits under section 667, subdivision (c)(5), a defendant convicted of first degree murder might well receive an earlier parole date than the shoplifter.

No other California law punishing repeat offenders is as severe as the “three strikes” legislation because the other statutes require the current offense to be of equal severity to the qualifying priors.   For example, section 667.7, subdivisions (a)(1) and (a)(2) impose life sentences on defendants previously convicted of offenses involving great bodily injury but only if the current offense also involves great bodily injury.   No such proportionality exists under the “three strikes” law.   Consequently, a petty offender, such as the defendant in this case, is subject to the same punishment as a person convicted three times of forcible rape.

As the foregoing analysis clearly shows, compared to how the Legislature has treated other repeat offenders the severity of life in prison for a defendant in Campos' circumstances far outweighs the gravity of the offenses he committed.

Finally, the penalty of life in prison is more severe than the punishment imposed on similarly situated defendants in other jurisdictions.

It appears at least 40 states in addition to California have some form of “three strikes” law.   Many of these statutory schemes provide for life imprisonment and at least four states (Alabama, Mississippi, Indiana and South Carolina) provide for life imprisonment without possibility of parole.   However, in only two other states, Washington and West Virginia, can the third “strike” be any felony.   In all other jurisdictions the third strike must be a serious or violent felony akin to the prior two strikes.   Therefore, Campos could only have received life imprisonment for his shoplifting or knife possession in two other states out of 40 with legislation similar to California's “three strikes” law.

In arguing a life sentence for defendant Campos would not constitute cruel or unusual punishment, the People assert the United States Supreme Court's opinion in Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 is a more analogous precedent than either Solem v. Helm, supra, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 or In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.   In Rummel, the court held it did not constitute cruel and unusual punishment to impose a life sentence with possibility of parole upon a defendant who had obtained $120.75 by false pretenses.   The sentence was imposed under a Texas recidivist statute on the basis of Rummel's prior felony convictions for fraudulent use of a credit card to obtain $80 in goods and passing a forged check in the amount of $28.36.   The People argue if a life sentence, with possibility of parole, for three minor non-violent felonies is not cruel and unusual punishment then neither is a life sentence, with possibility of parole, for three armed robberies and a petty theft.

The People's reliance on Rummel is misplaced for several reasons.   Not the least of these is that Rummel rejected the proportionality analysis adopted by our Supreme Court eight years earlier in In re Lynch and reaffirmed three years after Rummel in People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.17  If the facts in Rummel were presented to our Supreme Court, I believe that under the Lynch/Dillon test the Court would hold a life sentence for Rummell constituted cruel and unusual punishment notwithstanding the possibility of parole.

Furthermore, in this state the possibility of parole, relied on heavily by the court in Rummel, will not turn an otherwise unconstitutional sentence into a constitutional one.   In all the cases holding a sentence to be cruel or unusual punishment, the defendant had a possibility of parole.  (See, e.g., In re Lynch, supra, 8 Cal.3d at p. 417, 105 Cal.Rptr. 217, 503 P.2d 921;  In re Foss (1974) 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 519 P.2d 1073;  In re Grant (1976) 18 Cal.3d 1, 4–5, 132 Cal.Rptr. 430, 553 P.2d 590;  In re Wells (1975) 46 Cal.App.3d 592, 594, 121 Cal.Rptr. 23.)   The focus in determining proportionality is not on the sentence, but on the disparity between the sentence and the offense.  (In re Lynch, supra, 8 Cal.3d at p. 431, 105 Cal.Rptr. 217, 503 P.2d 921.)   The possibility of parole is just that:  a possibility.  (People v. Keogh (1975) 46 Cal.App.3d 919, 929, 120 Cal.Rptr. 817.)   Meanwhile, what is real is the “defendant's liability to serve the maximum term.”  (In re Lynch, supra, 8 Cal.3d at p. 417, 105 Cal.Rptr. 217, 503 P.2d 921.)

In summary, I find sentencing this defendant to life imprisonment for stealing a few beauty aids from a drug store, even considering his prior serious offenses, is significantly disproportionate to his past crimes and the risk he poses to society.   Therefore, such a sentence violates our state Constitution's prohibition against “cruel or unusual punishment” (Cal. Const., art. I, § 17).   The trial court's judgment should be affirmed.

FOOTNOTES

1.   Section 667, subdivisions (b)–(i) became effective March 7, 1994.   Section 1170.12 did not become effective until November 8, 1994, and therefore is not here applicable.

2.   The information also alleged these priors within the meaning of section 667, subdivision (a)(1).   Because appellant was not charged with “a serious felony” this allegation was erroneous and appropriately dismissed by the trial court.Additionally, the priors were alleged within the meaning of section 667.5, subdivision (b).   No issues are raised concerning this allegation.

3.   But see People v. Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743, an opinion by Division Five in which the majority state a trial court has authority to dismiss a qualifying prior before but not after, it is proved.

4.   The subsection reads:  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts․”  (Italics added.)

5.   Section 667, subdivision (f)(1) requires a prosecutor to allege all qualifying priors while subdivision (f)(2) authorizes the prosecutor to move to dismiss an alleged prior “in the furtherance of justice.”   Together, these sections indicate that there are priors which may be alleged without transgressing the prohibition against cruel or unusual punishment but whose dismissal would be in furtherance of justice.

1.   Penal Code section 667, subdivisions (b)–(i).

2.   All future references are to the Penal Code unless otherwise stated.

3.   Our Supreme Court has never ruled on the question whether the authority to dismiss an action or a prior conviction exists independently as an inherent “judicial power” of the trial court which the Legislature could not abrogate.  (See Cal. Const. art. 6, § 1.)   For cases suggesting the existence of such an inherent power see People v. Burke (1956) 47 Cal.2d 45, 52, 301 P.2d 241, People v. Williams, supra, 30 Cal.3d at p. 479, 179 Cal.Rptr. 443, 637 P.2d 1029;  and People v. Sidener (1962) 58 Cal.2d 645, 655–657, 25 Cal.Rptr. 697, 375 P.2d 641 (Schauer, J. dissenting).   On the other hand, the Court has upheld sentencing statutes which curtail any judicial authority to strike or dismiss allegations which would enhance defendant's sentence without considering whether those statutes unconstitutionally impair the trial court's inherent powers.  (See, e.g., People v. Tanner (1979) 24 Cal.3d 514, 519, 156 Cal.Rptr. 450, 596 P.2d 328.)   Because the case before us can be resolved on statutory grounds, it is unnecessary to address the scope of a trial court's inherent powers.

4.   Section 667, subdivision (b) states:  “It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, 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.”

5.   Although subdivision (e)(2)(A) provides other formulae for calculating the minimum term of the indeterminate sentence, in most cases the minimum term will be 25 years, as it would be in the present case.

6.   Defendant was sentenced under the provisions of Section 667, subdivisions (b)–(i).   Therefore, I do not address the effect of Proposition 184 which enacted essentially the same “three strikes” law as section 1170.12.

7.   At oral argument, the People suggested the Legislature placed the “three strikes” law in section 667, which already provided for enhancing sentences of repeat offenders, because it viewed the higher punishments for second and third strikes as enhancements in a “generic” sense.   There is no legislative history to support this argument.   The Legislature has made it abundantly clear it knows the difference between a base term and an enhancement and knows what language to use to express its intent.  Section 667, as previously noted, uses “enhancement” language in subdivision (a) and “base term” language in subdivision (e)(1).   (People v. Martin (1995) 32 Cal.App.4th 656, 667, 38 Cal.Rptr.2d 776.)   Furthermore, even if the People's argument was correct, the voters subsequently adopted an initiative measure placing the “three strikes” law in a newly created section 1170.12, thus severing any linkage between the sentencing provisions of the “three strikes” law and section 1385.

8.   Even if the courts were to accept the People's interpretation of subdivision (c)(2), it contains a large loophole.   The provisions of subdivision (c) only apply if “it has been pled and proved that the defendant has one or more prior felony convictions.”   Thus, if the trial court dismisses the priors before the defendant admits them or, as occurred here, before they are proved by the People, subdivision (c)(2) does not come into play.  (McGrath v. Superior Court (1995) 36 Cal.App.4th 1097, 1102–1103, 43 Cal.Rptr.2d 32;  People .v Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743.)

9.   I note this same committee analysis concludes a sentence imposed under section 667, subdivision (e) cannot be enhanced under subdivision (a).  (Id. at p. 7, [¶] (c).   I doubt the People subscribe to this expression of legislative intent, nor have the appellate courts accepted it.  (See cases cited at p. 714, supra.)

10.   Article III, section 3 of the California Constitution provides, “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”

11.   The only previous decision to so hold, People v. Sidener, supra, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, was overruled by a unanimous court in People v. Tenorio (1970) 3 Cal.3d 89, 91, 89 Cal.Rptr. 249, 473 P.2d 993.

12.   Of course, a sentence which would inflict cruel or unusual punishment on the defendant could not be imposed in any event.   Thus, regardless of whether it had the power to strike the prior convictions, the court clearly had the power, indeed the duty, to refrain from imposing an unconstitutional sentence.  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

13.   In California, it is the maximum term which must pass constitutional scrutiny.  (In re Lynch (1972) 8 Cal.3d 410, 417, 105 Cal.Rptr. 217, 503 P.2d 921 [“Viewed realistically, a defendant's liability is to serve the maximum term, and he is therefore entitled to know that the maximum term in this case is lawful.”] )

14.   For purposes of this dissent, I assume defendant's three robbery convictions equal three “strikes” for purposes of the “three strikes” law.”  (People v. King (1993) 5 Cal.4th 59, 78, 19 Cal.Rptr.2d 233, 851 P.2d 27.)

15.   In an attempt to bolster the defendant's image as a hardened criminal, the majority include in his “criminal background” the facts that he is a drug addict and unemployed.   Drug addiction has not been a crime in this state since Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.   The fact that being unemployed now is a crime will come as a shock to the millions of Californians who find themselves in that predicament during the current recession.

16.   In this case I find only that the life sentence called for under the “three strikes” law would be unconstitutional as applied to this defendant.   I do not argue the sentencing scheme of section 667, subdivision (e) is unconstitutional on its face.

17.   California courts are, of course, free to interpret our state Constitution to provide greater protection of life and liberty than extended by the federal Constitution, as construed by the United States Supreme Court.  (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352, 276 Cal.Rptr. 326, 801 P.2d 1077.)   As the Court explained in Raven, “if the [United States Supreme Court] were to rule that public torture or maiming of persons convicted of minor misdemeanors did not offend the federal due process, equal protection or cruel and unusual punishment clauses” we would not be compelled “to agree and to uphold state legislation imposing such severe forms of punishment.”  (Ibid.)Although Rummel has never been overruled, it has been limited to its facts (Solem v. Helm, supra, 463 U.S. at 303, fn. 32, 103 S.Ct. at 3016, fn. 32) and whether the high court would decide it the same way today is debatable.   See Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836.   In Harmelin, only two justices, Scalia and Rehnquist, took the position the Eighth Amendment contains no guarantee of proportionality.  Id. at pp. 962–994, 111 S.Ct. at pp. 2684–2701.   Justices Kennedy, O'Connor, Souter and Stevens expressed the view the Cruel and Unusual Punishments Clause encompasses a proportionality principle applicable to noncapital sentences.  (Id. at pp. 996–1009;  1009–1027;  1028–1029, 111 S.Ct. at pp. 2702–2709;  2709–2718;  2719–2720.)

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.