PEOPLE v. PETTY

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

The PEOPLE, Plaintiff and Respondent, v. William Joel PETTY, Defendant and Appellant.

No. B087484.

Decided: August 08, 1995

Sylvia Whatley Beckham, under appointment by the Court of Appeal, Santa Barbara, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Pamela C. Hamanaka, Supervising Deputy Atty. Gen., Sanjay T. Kumar and Douglas L. Wilson, Deputy Attys. Gen., for plaintiff and respondent.

In this “two strikes” case (Pen.Code,1 §§ 667, subds. (b)–(i)) two issues are raised, one factual, one legal.   Factually, appellant contends the trial court believed, mistakenly, it could not impose a misdemeanor sentence on an alternative misdemeanor-felony offense (a “wobbler”) when a serious felony allegation (§§ 667, subds. (b)–(i)) had been found true.   Legally, appellant contends section 667, subdivision (f)(2) grants the trial court power to dismiss a serious felony allegation on its own motion.   We find both contentions without merit and affirm the judgment.

BACKGROUND

In a court trial appellant was found guilty of felony hit and run (Veh.Code, § 20001, subd. (a)), an offense punishable by imprisonment in state prison or county jail.   A serious felony (robbery) conviction allegation (§ 667, subds. (b)–(i)) was proved and found true.2  The trial court chose the low 16–month term, doubted it pursuant to section 667, subdivision (e)(1),3 and sentenced appellant to state prison for 32 months.

DISCUSSION

1. Appellant contends the trial court believed, mistakenly, it could not impose a misdemeanor sentence on an alternative misdemeanor-felony offense (a “Wobbler”) when a serious felony allegation (§§ 667, subds. (b)–(i)) had been found true.

 An alternative misdemeanor-felony (a “wobbler”) is an offense punishable “by imprisonment in the state prison or by fine or imprisonment in the county jail.”  (§ 17, subd. (b).)  It is a felony unless made a misdemeanor.   It may be made a misdemeanor in a variety of ways.   A prosecutor may file it as a misdemeanor.  (§ 17, subd. (b)(4).)   A preliminary hearing magistrate may “determine[ ] that the offense is a misdemeanor.”  (§ 17, subd. (b)(5).)   A sentencing court may impose punishment other than state prison, such as a county jail sentence.  (§ 17, subd. (b)(1).)

Appellant contends the trial court believed, mistakenly, the subject offense was not an alternative misdemeanor-felony and that it must impose a state prison sentence.

Respondent argues the record does not support such a belief by the trial court and the subject offense, because the serious felony conviction allegation (§§ 667, subds. (b)–(i)) had been found true, was punishable only by state prison.

We conclude the record fails to support appellant's contention that the trial court believed it could not impose a county jail sentence.   Accordingly, because the trial court chose to impose a state prison rather than county jail sentence, we need not consider whether it could have imposed a county jail sentence.

At the sentence hearing, during its lengthy remarks, the trial court stated:  “I really think this is not probation.   And I would like to give him the lowest possible I could, like sixteen months, instead of whatever else the legislature has in mind.”

It is upon this comment appellant entirely relies.   We find nothing in this comment, nor in the trial court's other remarks, that suggests the trial court wanted to impose a county jail sentence or that it believed it could not do so.

“It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.”  (People v. Mack (1986) 178 Cal.App.3d 1026, 1032, 224 Cal.Rptr. 208;  People v. Lewis (1987) 191 Cal.App.3d 1288, 1296, 237 Cal.Rptr. 64;  People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430, 281 Cal.Rptr. 750.)   Appellant has failed to prove otherwise.

2. Appellant contends section 667, subdivision (f)(2) grants the trial court power to dismiss a serious felony allegation on its own motion.

 The argument,4 by now familiar,5 is this:  (1) section 667, subdivision (f)(2) allows the prosecutor to “move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385” (2) since the statute authorizes the motion it impliedly empowers the court to grant it and (3) if the court has the power to dismiss such a prior felony conviction (upon motion by the prosecutor) then that power cannot constitutionally be conditioned upon prosecutor consent.   (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.)

The contention is mistaken.  (See People v. Glaster (1995) 36 Cal.App.4th 785.)

When Tenorio was decided, trial courts had authority to dismiss priors in furtherance of justice.   The provision at issue in Tenorio fettered that authority with prosecutor control.  Tenorio held the provision violative of the separation of powers doctrine.  (Cal. Const., art. III, § 3.)

By contrast, when “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).6  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.

It restricted the trial court's authority to grant probation (subd. (c)(2)), order diversion (subd. (c)(4)), make narcotic rehabilitation commitments (subd. (c)(4)), sentence concurrently (subds. (c)(6), (7) and (8)), or engage in plea bargaining (subd. (g)).

It restricted the prosecutor's authority to engage in plea bargaining (subd. (g)) and his/her authority not to plead or prove serious priors (subd. (f)(1)).   In order to mitigate this latter restriction on prosecutorial authority, subdivision (f)(2) permits the prosecutor to move the dismissal of a prior for insufficient evidence or in furtherance of justice.

To suggest that by this provision (mitigating a prosecutor restriction) the Legislature intended to give judges the very power it had recently taken from them—the power, on their own motion, to dismiss serious priors in furtherance of justice—is to suggest “absurd consequences which the Legislature did not intend.”  (People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

The Legislature made their intent plain:  “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.”  (Subd. (b);  italics added.)   It consistently implemented this intent, as we have indicated, by restricting prosecutor and judge discretion.   Had the Legislature intended to give judges power to dismiss priors on their own motion, it would have been a simple matter to have said so in subdivision (f)(2), as they had in section 1385, subdivision (a).   But to have done so, either expressly, or as appellant contends, impliedly, would have been to thwart the expressed intent of the enactment.   Instead of “ensur[ing] prison sentences and greater punishment” the legislation, if it included such judicial authority, would have enabled judges—concerned about court congestion and crowded calendars—to impose shorter prison sentences and lesser punishment.

We conclude that subdivision (f)(2) mitigates a restriction on prosecutors and does not give judges, on their own motion, power to dismiss serious priors in furtherance of justice.7

 Respondent requests we correct the judgment by subtracting one day of custody credits.   When, as here, a party has failed to object to the custody credit error in the trial court, the custody credit error is de minimus, the sentence is lengthy, and other issues dominate the appeal—we shall not entertain an issue of custody credit error.

DISPOSITION

The judgment is affirmed.

I concur in the majority's holdings the trial court deliberately chose to sentence defendant to prison rather than county jail and the People waived the alleged error in computing custody credits.   However, I respectfully disagree with the majority's conclusion the trial court lacked the power to dismiss a prior felony conviction in the interests of justice.   Furthermore, if Penal Code section 667, subdivision (f)(2) 1 does grant the prosecutor a veto over the court's exercise of such power, then that subdivision is unconstitutional under the separation of powers clause of the California Constitution.

I. THE TRIAL COURT RETAINED THE DISCRETION UNDER PENAL CODE SECTION 1385 AND THE “THREE STRIKES” LAW TO DISMISS A PRIOR FELONY CONVICTION FOR SENTENCING PURPOSES.

It is clear from the record the trial court would have dismissed the allegation of a prior robbery conviction and sentenced defendant to the minimum term of 16 months had the court believed it retained the authority to do so without obtaining the prosecution's consent.   As I will explain more fully below, the trial court did have the discretion to dismiss the prior conviction without obtaining the prosecution's consent.  Section 1385, subdivision (b) did not deprive the court of its authority to dismiss a prior conviction under section 1385, subdivision (a) for purposes of determining the base term of the sentence because the restriction on dismissing priors contained in subdivision (b) only applies to enhancements 2 while the provisions of section 667, subdivisions (b)–(i) refer not to enhancements but to the base term itself.3  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 Penal Code section 1385, subdivision (a).

A. The Applicable Statutes.

The trial court's power to dismiss an action “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.”

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 1029.4

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).5

The issue in the case before us arises from the provisions of the “three strikes” law contained in subdivisions (e) and (f)(2).   Subdivision (e) provides in relevant part:  “For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior [serious or violent] 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.”   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.”

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.

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 precluded by section 1385, subdivision (b), from striking defendant's prior robbery conviction 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, the provision of 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 court had no separate power which could be impaired by the prosecutor.

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.”  (Emphasis 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 determinate term” for a defendant who has one prior strike “shall be twice the term otherwise provided as punishment for the current felony conviction.”

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 the 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)(1) supplanted the term that would otherwise apply for hit and run driving with injury (16 months–2 years–4 years) with a term “twice the term otherwise provided as punishment” for that offense.7

In summary, section 1385, subdivision (b) only applies to enhancements;  the sentence imposed on defendant under section 667, subdivision (e)(1) 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 a prior “strike” for purposes of determining the base term of defendant's sentence.

It necessarily follows any limitation on the trial court's power to dismiss a prior felony conviction for purposes of section 667, subdivision (e)(1) must be found in subdivision (f)(2) of that statute.   The majority opinion assumes subdivision (f)(2) 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, “statutes 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 majority assumes 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.   Maxims of statutory construction are, of course, not immutable rules and must give way to contrary legislative intent.  (In re Joseph B. (1983) 34 Cal.3d 952, 957, 196 Cal.Rptr. 348, 671 P.2d 852.)   Furthermore, the maxim that the expression of one thing is the exclusion of another has no application where no manifest reason appears why other persons or things than those enumerated should not be included and thus the exclusion would result in injustice.  (Ibid.)

In People v. Williams, supra, 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 before this court 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, 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.   (4 Cal.4th at pp. 209–211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

In People v. Tanner, supra, 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 granting 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.”  (24 Cal.3d 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, 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 the possibility of parole” did not prevent the trial court from exercising its power under section 1385 to dismiss a finding of special circumstances.   (30 Cal.3d at pp. 483–484, 179 Cal.Rptr. 443, 637 P.2d 1029.)   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, 231, 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.”  (Id. at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833.)   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 of a legislative intent 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.   Nothing in the legislative history of the “three strikes” law comes close to suggesting the Legislature intended to withdraw the trial court's authority under section 1385.   There is nothing like the statement of Legislative Counsel cited in Thomas that the purpose of the subject statute was to “delete” the trial court's authority to dismiss enhancements.  (4 Cal.4th at p. 209, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Nor did the 1994 amendments to section 667 repeal any previously existing statutory authority allowing the court to dismiss prior convictions.

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 escape 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).”  (Emphasis 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.   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 that 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 this power.

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 in furtherance of justice, then that subdivision violates the separation of powers clause of the California Constitution.  (Cal. Const. art. III, § 3.) 8

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 p. 41.)   However, there has never been a decision by the Supreme Court, or a Court of Appeal prior to this case, holding 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.9  To the contrary, the Supreme Court and appellate courts have uniformly 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];  People v. Clay (1971) 18 Cal.App.3d 964, 96 Cal.Rptr. 213 [prosecution consent to grant of probation to class of defendants].)   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 that consent unconstitutionally injects the executive branch into a “fundamentally and inherently judicial function[ ].”  (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.”  (3 Cal.3d 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, found 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, however, 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. 42–43.)   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).) 10  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, the 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 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, 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.  (24 Cal.3d at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328;  see discussion, supra, p. 41.)

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 206, 211–213, 14 Cal.Rptr.2d 174, 841 P.2d 159;  see discussion supra, p. 41.)

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 thereafter 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.   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.”  (5 Cal.3d 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 the 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.)

I therefore 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.

For the reasons I have set forth above, I would hold the defendant's sentence should be modified to impose a prison term of 16 months rather than 32.

FOOTNOTES

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

2.   Three state prison priors (§ 667.5, subd. (b)) were alleged but the prosecutor chose not to prove them.

3.   In pertinent part the section reads:  “(e) For purposes of subdivisions (b) to (i), inclusive, 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 felony conviction that has been pled and proved, the determinate term ․ shall be twice the term otherwise provided as punishment for the current felony conviction.”

4.   Appellant also observes that a trial court has inherent authority to dismiss a punishment allegation if its imposition would be cruel or unusual.   Since appellant makes no claim the instant punishment is cruel or unusual the observation is irrelevant.

5.   The issue is before the California Supreme Court:  People v. Superior Court (Romero), review granted April 13, 1995.

6.   The subdivision provides:  “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.”

7.   The “for purposes of enhancement ․” (§ 1385, subd. (b)) issue discussed at length by the dissent was not raised, briefed, or argued by the parties.   Since we have not afforded “the parties an opportunity to present their views on the matter” (Gov.Code, § 68081) it is improper to consider the issue..    .    .    .    .

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

2.   Section 1385, subdivision (b) provides the trial court is not authorized to dismiss “any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

3.   The majority ignores this fundamental flaw in its reasoning by claiming the People were not given an opportunity to brief the issue of whether the sentencing provisions of the “three strikes” law constitute an enhancement or the term of punishment itself.  (Maj.Op. at fn. 7.)   If there was a genuine need to hear from the People on this issue, the obvious solution would be to request supplemental briefing.   A review of the respondent's brief in this case, however, shows the People implicitly argued the sentencing provisions of the “three strikes” law constitute an enhancement for purposes of applying section 1385, subdivision (b).  After quoting the language of subdivision (b), (see fn. 2, supra ) the People stated, “When the Legislature passed ․ the Three Strikes Law, the Legislature placed its provisions in section 667.  [Citation.]  Therefore, under [section 1385, subdivision (b) ] the trial court was prohibited from dismissing or striking the allegation of appellant's prior conviction for a serious felony.”   This position, of course, is totally at odds with the position the People have taken in numerous other “three strikes” cases in which they have argued the sentencing provisions of section 667, subdivisions (b)—(i), are not an enhancement.  (E.g., People v. Anderson (1995) 35 Cal.App.4th 587, 594–595, 41 Cal.Rptr.2d 474;  People v. Ramirez (1995) 33 Cal.App.4th 559, 566, 39 Cal.Rptr.2d 374;  People v. Martin (1995) 32 Cal.App.4th 656, 666, 38 Cal.Rptr.2d 776.)   The People cannot complain they have not been given the opportunity to argue the question whether the “three strikes” law is an enhancement provision when, in fact, they have argued both sides of the issue.

4.   Perhaps because the power to dismiss has been recognized by statute throughout California's history, the Supreme Court has never directly 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 constitutionally 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 and People v. Williams, supra, 30 Cal.3d at p. 479, 179 Cal.Rptr. 443, 637 P.2d 1029;  and see 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 a 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 this case can be resolved on statutory grounds, it is unnecessary to address the scope of a trial court's inherent powers.

5.   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.”

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

7.   It could be argued 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.   There is no evidence 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, supra, 32 Cal.App.4th at p. 667, 38 Cal.Rptr.2d 776.)

8.   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.

9.   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.

10.   Although subdivision (f)(2) literally authorizes the court to dismiss only for insufficiency of the evidence, the parties agree the power to grant a motion to dismiss in the furtherance of justice must be implied because it would make no sense for the Legislature to authorize a motion on that ground but prohibit the court from granting it.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.