PEOPLE v. GLASTER

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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Julie Anne GLASTER, Defendant and Respondent.

No. B086215.

Decided: July 12, 1995

Gil Garcetti, District Attorney, Brent Riggs and Otis L. Hubbard, Deputy District Attorneys, for plaintiff and appellant. Michael P. Judge, Public Defender, Albert J. Menaster, Tracy Mooney and Alex Ricciardulli, Deputy Public Defenders, for defendant and respondent.

OPINION

The People appeal from the imposition of an “unlawful” sentence.   The trial court, over the objection of the People, struck a prior “strike” allegation within the meaning of the “three strikes law,” Penal Code section 667, subdivisions (b) through (i) 1 in the “interests of justice” pursuant to section 1385.   The trial court then sentenced respondent to four years in state prison.   This appeal followed.

Facts

Julie Anne Glaster was charged in a felony information with the offense of sales of a controlled substance, to wit, cocaine base, a violation of Health and Safety Code section 11352, subdivision (a).2  In addition, it was alleged that she had suffered previous felony convictions, namely a prior prison term for petty theft with a prior conviction (§ 666) within five years of her current offense within the meaning of section 667.5, subdivision (b), and a prior “strike” conviction allegation for “robbery/attempted robbery” (§§ 211, 664) within the meaning of section 667, subdivisions (b) through (i).

Respondent filed a motion to strike the prior “strike conviction.”   Appellant filed points and authorities opposing respondent's motion.   The matter was eventually transferred from the master calendar court to a trial court for trial by jury.   After reviewing the probation officer's report, the trial court indicated to respondent that it would be willing, over appellant's objection, to strike the alleged “strike conviction” and sentence respondent to the low term of three years for the sales of cocaine charge, plus an additional one-year enhancement for the prior prison term, for a total of four years.3  The trial court overruled the prosecution's objection to the proposed agreement by the court.   Respondent entered a guilty plea pursuant to the court's indicated sentence and was sentenced accordingly to four years in state prison.

Contentions

Appellant contends:  “The trial court had no authority to strike the [three strikes] allegation under Penal Code section 1385.”

Respondent contends:  “The trial court properly dismissed respondent's ‘strike’ prior in furtherance of justice under Penal Code section 1385.   A. Separation of Powers.   B. Romero's attempts to distinguish Tenorio [ ] [People v. Tenorio (1970) 3 Cal.3d 89 (89 Cal.Rptr. 249, 473 P.2d 993) ] are fruitless.4  C. The impact of the ‘three strikes' initiative.”

Discussion

1. Section 1385, subdivision (b) does not apply to a “strike” prior conviction allegation within the meaning of sections 667, subdivisions (b) through (i) and 1170.12.

Section 1385 provides:  “(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.

“(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”  (Italics added.)

 Appellant contends the trial court had no authority under section 1385 to strike the allegation pleaded under the “three strikes” legislation.   Appellant argues that the three strikes law expressly allows the court, on its own motion, to dismiss or strike a three strikes prior in only one situation—when satisfied “that there is insufficient evidence to prove the prior conviction.”  (Italics added.)  (§ 667, subd. (f)(2).)

Section 667, subdivision (f)(2) 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 three strikes law, Assembly Bill No. 971, codified as section 667, subdivisions (b) through (i), was originally enacted as an urgency measure on March 7, 1994.   A subsequent initiative, Proposition 184, which was passed by the voters in November 1994, is codified as section 1170.12.

 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 the 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 (1995) 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374.)

 We find that the additional punishment under sections 667 subdivisions (b) through (i) and 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, Division Four of this court held that the trial court erred in failing to double the punishment imposed for the subordinate consecutive term in a three strikes case.   In Martin, the court 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).)”  (Id. at p. 666, 38 Cal.Rptr.2d 776, italics added.)

“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 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.)

Having determined that a “strike allegation” within the meaning of sections 667, subdivision (b) through (i) and 1170.12 is not an “enhancement” within the meaning of section 1385, subdivision (b), we now turn to the question whether the trial court had the authority to strike the “strike allegation” in the interests of justice under section 1385, subdivision (a) or any other section.

Respondent contends the “three strikes” law in section 667, subdivision (f)(2) impliedly gives a court the power to dismiss “strike” priors in the furtherance of justice, since the prosecution expressly has that power.

“[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, 1019 [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 (1981) supra, 30 Cal.3d [470,] 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, italics added.)

Section 667, subdivision (c) provides:  “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 strike prior “strike” conviction allegations, except for cases involving an insufficiency of the evidence.   This interpretation is certainly consistent with the stated intent of the three strikes law.

“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.”  (Italics added.)  (§ 667, subd. (b), as amended by Stats.1994, ch. 12, § 1.)

We reject respondent's contention that section 667, subdivision (f)(2) impliedly empowers the court to strike a “strike” prior conviction allegation.   We hold that trial courts, on their own motion, lack the authority to strike “strike allegations” in the interests of justice.

2. The three strikes law does not violate the separation of powers doctrine.

 Respondent contends that the three strikes law violates the separation of powers doctrine.

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 prosecuting attorney to plead and prove each prior felony conviction except as provided in subdivision (f)(2).   Section 667, 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.

Section 667, subdivision (f)(2) 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, an alleged strike prior allegation in the interests of justice.

Respondent reasons that if the prosecutor may move to strike a prior conviction in the furtherance of justice, the court must also have the authority to strike a prior conviction in the furtherance of justice.   She claims that any other interpretation of the statute requiring prosecutorial approval of the court's exercise of its power would be unconstitutional, in violation of the separation of powers doctrine, citing People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (Tenorio ).  (See also Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 [legislative scheme requiring consent of the prosecuting attorney before a magistrate could reduce a wobbler to a misdemeanor violates separation of powers doctrine];  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 [trial court's decision to “divert” to a drug treatment and rehabilitation program being subject to a prosecutorial veto violates separation of powers doctrine];  contrast Davis v. Municipal Court (1988) 46 Cal.3d 64, 73–77, 249 Cal.Rptr. 300, 757 P.2d 11 [decided 14 years after People v. Superior Court (On Tai Ho), supra, held the requirement of prosecutorial approval of local diversion programs under section 1001.2, subdivision (b) was not an unconstitutional delegation of legislative authority, nor did it violate the separation of powers doctrine].)

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.

It is somewhat interesting to note that our Supreme Court in deciding Tenorio, overruled another Supreme Court case decided eight years earlier dealing with the same separation of powers issue regarding the same statute.

In People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, a four-member majority of the Supreme Court rejected a separation of powers argument regarding Health and Safety Code section 11718.

In 1970, when deciding Tenorio, the Supreme Court revisited the separation of powers issue regarding Health and Safety Code section 11718 and came to a contrary conclusion, holding that the dissenting opinion in People v. Sidener, supra, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641 was the better reasoned.

Our analysis today does not question the wisdom of our Supreme Court in focusing on the events that led up to its decision in 1970 when it decided Tenorio, supra.   Instead, we focus on the events which have occurred in the last 25 years since Tenorio was decided.

Tenorio's reasoning was based upon an extended history, since 1850, of unrestricted authority by the judiciary to dismiss a charged prior without the concurrence of the prosecutor.  (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The court's decision rested upon both the fact the disputed statutory provision deprived the court of its traditional discretion in the exercise of sentencing decisions and the fact 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.”  (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

The statutory provision considered in Tenorio differs significantly from the three strikes law.   The three strikes legislation, viewed as a whole, does not grant unfettered authority to the prosecution.   The prosecutor's discretion in prosecuting prior felony strike allegations is significantly restricted.   Subdivision (g) of section 667 precludes the use of prior felony convictions in plea bargaining.   Subdivisions (f)(1) and (g) mandate the prosecution plead and prove all known prior felony convictions.   Subdivision (g) precludes the prosecution from entering into a plea bargain to strike or seek the dismissal of prior felony conviction allegations.   The sole discretion provided the prosecution is enumerated in subdivision (f)(2), which permits the prosecution to move to strike or seek the dismissal of a prior “strike” conviction allegation if there is insufficient evidence to prove the allegation or in the furtherance of justice.

In contrast to the three strikes provisions, the provision at issue in Tenorio stripped the court of its long-standing traditional power to independently strike an allegation of a prior conviction and provided the prosecution with the power to control the court's discretion in exercising its power to strike.   When Tenorio was decided, the judiciary had unrestricted power to strike prior convictions in the interest of justice.   Here, no such power to strike a “strike” allegation was ever created.

The court's power to strike a prior serious felony conviction alleged pursuant to section 667 was eliminated in 1986 when the Legislature enacted section 1385, subdivision (b).   This enactment withstood challenge on a separation of powers argument in People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.  (See People v. Williams (1987) 196 Cal.App.3d 1157, 1160, 242 Cal.Rptr. 421 [trial courts no longer have the discretion to strike a prior serious felony conviction allegation (§ 667, subd. (a)) in the interests of justice (§ 1385, subd. (b));  however, the restrictions in section 1385, subdivision (b) may not be applied retrospectively to a crime that predated the amendment].)

Since the court was already prohibited from striking section 667 enhancements under subdivision (b) of section 1385, subdivision (f)(2) of section 667 has little, if any, impact on the court's existing power.   We note that presently, three strikes prior convictions constitute the same offenses listed as serious offenses within the meaning of section 1192.7, which cannot be stricken by the court under section 1385, subdivision (b).

The reasoning in Tenorio, supra, has been undermined by subsequent legislation and case law further limiting the court's discretion under section 1385, subdivision (a).   These limitations have been upheld.

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 Supreme 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.

In 1982, the people, through the initiative process, enacted section 667, the “Victims' Bill of Rights” which imposed five-year enhancements for certain previous serious felony convictions.   In People v. Fritz (1985) 40 Cal.3d 227, 231, 219 Cal.Rptr. 460, 707 P.2d 833, our Supreme Court held that the trial court retained authority to strike the 667 enhancements in the interest of justice under section 1385.

In 1986, subdivision (b) of section 1385 was enacted which precluded the trial court from striking a prior conviction of a serious felony for purposes of a section 667 enhancement.  (Stats.1986, ch. 85, § 2.)   The expressed legislative intent was to abrogate the holding of People v. Fritz, supra, and to restrict the authority of the trial court to strike prior convictions of serious felonies when imposing an enhancement under section 667.  (Stats.1986, ch. 85, § 3.)   The validity of the statute was upheld in People v. Valencia, supra, 207 Cal.App.3d 1042, 255 Cal.Rptr. 180.   “Valencia contends Penal Code section 1385, subdivision (b) ‘unconstitutionally infringes upon the power of the judiciary by prohibiting the striking of prior § 667 felonies․'  [¶] 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), which permitted the court to strike certain listed enhancements if warranted by mitigating circumstances, to delete reference to section 12022.5 firearm use enhancements.  (People v. Thomas, supra, 4 Cal.4th 206, 208, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Although section 1170.1, subdivision (h) did not specifically refer to the court's power to strike under section 1385, our Supreme Court held a trial court no longer had discretion to strike a section 12022.5 firearm enhancement under section 1385.  (4 Cal.4th at pp. 209–214, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

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

Based upon the events which have transpired since Tenorio was decided, we hold that the three strikes statute and initiative, sections 667, subdivisions (b) through (i) and 1170.12, do not offend the separation of powers doctrine.

3. The passage of Proposition 184 does not authorize the trial court to strike a three-strike prior conviction allegation.

 Respondent argues that the passage of Proposition 184, codified as section 1170.12, which was passed on November 8, 1994, applies any favorable changes to the defendant retroactively.  (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.)   Respondent asserts “[b]y enacting the law in newly created Penal Code section 1170.12, the Initiative takes its provisions outside the bar to judges striking priors in the furtherance of justice under Penal Code section 1385 [subdivision] (b).”

 While we do not disagree with respondent's contention of retroactive application of favorable changes for defendant (see Tapia v. Superior Court, supra, 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434), we disagree with respondent's contention that the passage of Proposition 184 was intended to favor defendants or was intended to remove the prohibition of striking priors.

We cannot adopt appellant's construction of the statute, to do so 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, 559–560, 224 Cal.Rptr. 626, 715 P.2d 585.)

The California Ballot Pamphlet General Election, November 8, 1994, Proposition 184 Legislative Analysis reveals the clear intent of the initiative, namely to increase punishment for recidivist offenders.

The Legislative Analysis provides as follows:

“Official Title and Summary Prepared by the Attorney General

“Increased Sentences.  Repeat Offenders.  Initiative Statute.E.

“Increases sentences for defendants convicted of any felony who have prior convictions for violent or serious felonies such as rape, robbery or burglary.  [¶] Convicted felons with one such prior conviction would receive twice the normal sentence for the new offense.   Convicted felons with two or more such prior convictions would receive a life sentence with a minimum term of three times the normal sentence or 25 years, whichever is greater.  [¶] Includes as prior convictions certain felonies committed by juveniles 16 years of age, or older.  [¶] Reduces sentence reduction credit which may be earned by these convicted felons.

“ .    .    .    .    .

“Proposal:  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.”  (Italics added.)  (Ballot Pamp., analysis of Prop. 184 by Legislative Analyst as presented to the voters, Gen.Elec. (Nov. 8, 1994).)

To suggest that the people, in passing this initiative, intended to impliedly give trial courts discretion to strike “strike” priors is absurd.   This initiative was passed overwhelmingly by 72 percent of the voters 5 in a clear signal that they wanted to strengthen, not weaken, the enforcement of criminal laws in California by punishing recidivists more severely.

We find that the passage of Proposition 184, codified as section 1170.12 does not permit trial court discretion to strike a “strike” prior.

Disposition

The judgment is reversed.   The matter is remanded to the trial court to permit the defendant to withdraw her plea if she desires to do so.   If defendant elects not to withdraw her plea, the trial court shall sentence defendant to a minimum of six years in state prison.6

I concur with the result reached in this particular case.   However, such concurrence does not mean that I agree with the idea that the judiciary is powerless to avoid the dictates of any legislation that mandates the imposition of a fixed sentence regardless of the facts.

The Legislature's concern with public safety is legitimate and its attempt to control repeat offenders is commendable.   The problem is that in any particular case, the mandatory language of the “three strikes” law may result in punishment that is radically too severe when considering the crime and the defendant's criminal background.

Sadly, the Legislature has vested only the district attorney with the discretion to dismiss a “strike” in “furtherance of justice,” as if the judiciary cannot be trusted with such a function.   While there may be an understandable concern that providing trial judges with such discretion would result in the wholesale dismissal of “strikes” as a calendar-control technique, such concern is not based on reality.   Under Penal Code section 1203, subdivision (e), the judiciary has long had the statutory authority to give probation in cases involving “serious” felonies, but was cautioned within the same statute not to do so “[e]xcept in unusual cases where the interests of justice would best be served.”   If probation is granted, the trial court is required to set forth a detailed explanation of the reasons and circumstances that justify its action.  (Pen.Code, § 1203, subd. (f).)  Experience has shown that the trial courts have not abused their discretion.   In fact, a grant of probation in such cases is rare.

As a practical matter, any judge who is perceived as being “soft” on crime will have a very short tenure in criminal law.   The district attorney will simply file an affidavit of prejudice under Code of Civil Procedure section 170.6.   If that happens too often, the particular judge will be given another assignment.   Unfortunately, trial judges have no corresponding ability to disqualify a district attorney.

Most district attorneys do their best to be fair.   Others demonstrate a remarkable lack of balance or proportion.   It is in the latter situation where the trial court has the obligation to step in and see that justice is done.   That does not mean being a “rubber stamp” for the district attorney.   The judicial branch is not meant to “ ‘servilely wait on the pleasure of the executive.’  [Citation.]”  (People v. Tenorio (1970) 3 Cal.3d 89, 93, 89 Cal.Rptr. 249, 473 P.2d 993.)

One of these days a case will arise wherein imposition of the three strikes law is so unfair that the judiciary will be forced to reassert its traditional role as the final arbiter of what is an appropriate sentence.   Whether that will be done under the basis of such rationale as separation of powers, cruel and unusual punishment, or the inherent power of the judiciary is yet to be seen.   The present case is not the one in which to take such a stand.   But one will soon come along.

FOOTNOTES

FOOTNOTE.  

1.   All further statutory references are to the Penal Code unless otherwise noted.

2.   The preliminary hearing transcript reveals that respondent (Glaster) sold a “$10.00 rock” of cocaine base to an undercover police officer.   By stipulation, the object contained .17 grams of cocaine.

3.   We note the change of plea and sentencing took place on July 6, 1994, long before any appellate decisions were rendered regarding the newly enacted “three strikes” law.

4.   We decline to address respondent's contention involving the case of People v. Superior Court (Romero) (1995) 31 Cal.App.4th 653, 37 Cal.Rptr.2d 364 review granted April 13, 1995 (S045097).   Review was granted in Romero after the filing of the opening and response briefs in this matter.   Although it cannot be cited as authority (Cal.Rules of Court, rule 977), our analysis is the same as Romero's with the exception of treating a “strike” allegation as an “enhancement” within the meaning of section 1385, subdivision (b).

5.   5,381,627 “yes” votes to 2,107,609 “no” votes.  (Final California Election Results/Statewide Offices, L.A. Times (Nov. 10, 1994) § A, p. 23.)

6.   We note that the trial court in its original sentence imposed an additional year for a prior prison commitment, within the meaning of section 667.5, subdivision (b).   The trial court, of course, retains discretion to strike this enhancement.  (People v. Martin, supra, 32 Cal.App.4th 656, 669, 38 Cal.Rptr.2d 776.)   Defendant's “maximum exposure” is 11 years in state prison:  the high term of five years, doubled as a result of the “strike” allegation, for a ten-year principal term, plus one year for the prior prison term enhancement, for an aggregate term of eleven years.

FOOTNOTE.  FN* In denying review, the Supreme Court ordered that the opinion be not officially published.  (See California Rules of Court—Rules 976 and 977).

BRANDLIN, Judge.* FN* Judge of the Municipal Court for the South Bay Judicial District sitting under assignment by the Chairperson of the Judicial Council.

FUKUTO, Acting P.J., concurs.