PEOPLE v. BAILEY

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

The PEOPLE, Plaintiff and Appellant, v. Calvin BAILEY, Defendant and Respondent.

No. B087285.

Decided: August 08, 1995

Gil Garcetti, Dist. Atty., Diana L. Summerhayes and Glenn R. Britton, Deputy Dist. Attys., for plaintiff and appellant. Michael P. Judge, Public Defender, Albert J. Menaster, Elizabeth Warner–Sterkenburg, and Alex Ricciardulli, Deputy Public Defenders, for defendant and respondent.

INTRODUCTION

On July 8, 1994, a one-count felony complaint was executed charging Calvin Bailey (“defendant”) with the crime of second degree commercial burglary, in violation of Penal Code 1 section 459 (case No. NA020760).

It was further alleged for purposes of section 667, subdivisions (b) through (i) 2 that defendant suffered the following prior felony convictions in the Los Angeles County Superior Court:

• Robbery (two counts) in violation of section 211 on or about July 17, 1986, (case No. A033037);

• Robbery with great bodily injury in violation of section 211 with additional punishment under section 12022.7 (case No. A033277).

It was further alleged for purposes of sections 667.5, subdivision (b) that defendant served terms in state prison for his convictions in case Nos. A033037 and A033277 and failed to remain free of prison custody for, and did commit an offense resulting in a felony conviction during a period of five years after the conclusion of said terms.3

On July 15, 1994, before Superior Court Judge Arthur M. Jean sitting as a magistrate, defendant entered a plea of guilty to the charge of second degree burglary and admitted the truth of the prior conviction in case number A033037 which the People alleged as one prior although two counts of robbery were referred to.   The magistrate struck the prior felony allegation in case number A033277 (robbery with great bodily injury) purporting to act under section 1385, over the objection of the People.   The matter was set for sentencing on July 29, 1994.

On July 29, 1994, Judge Jean, sitting as a Superior Court judge, again struck the prior alleged under case number A033277, again purporting to act under section 1385, and over the objection of the People.   The defendant was then sentenced to seven years in the state prison, computed by doubling the high term (§ 667, subd. (e)(1)) plus an additional year for the remaining prior allegation under section 667.5.   The sentence was imposed as if the current case was a “second strike” rather than a “third strike” case.

On August 9, 1994, the People filed a timely notice of appeal from the imposition of an illegal sentence and the dismissal of the allegations.

STATEMENT OF FACTS

The Charges

The underlying charge of second degree commercial burglary in the current case (No. NA020760) is uncomplicated.   Defendant entered a K–Mart with the intent to steal.   Once inside the store, he took numerous items valued at approximately $225 or $226 and put them in a K–Mart bag while in the store.   He left the store without paying for the items and was stopped by a security guard as he exited the store.

The special allegations filed in the current case are more complex, and are synthesized and described in the “INTRODUCTION” section of this opinion.

The Proceedings of July 15, 1994

On July 15, 1994, defendant, through his trial attorney, offered to plead guilty in exchange for a seven year sentence.   Defendant's counsel argued that the three strikes statute allowed the prosecution to strike priors under section 1385 in the interest of justice and thus, the trial court had the power to strike prior allegations based on the separation of powers doctrine and the case of People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.   Defendant's counsel also made the additional argument that the court should strike one prior allegation on the basis that the sentence of 25 years to life required by the three strikes law was unconstitutional as applied to defendant due to the cruel and unusual punishment clauses of both the federal and state constitutions.

The People argued against the defendant's request to strike the prior on the following basis, inter alia:  section 1385, subdivision (b) does not authorize a judge to strike a prior alleged under section 667;  section 667, subdivision (f)(2) gives the power to strike such a prior conviction allegation only to the People in the interest of justice;  and the court was given the power to strike such an allegation only for a failure of proof, which did not exist in the instant case.   Additionally, the People objected on the ground that the trial court was engaging in plea bargaining which was prohibited by section 667, subdivision (g).

The trial court then struck the prior allegation pertaining to case number A033277 (robbery with great bodily injury) containing a section 667.5, subdivision (b) allegation, giving a lengthy statement of its reasoning.   During this statement of reasons, the trial court indicated:  “it appears to me that I do have the authority to strike the prior.   If I'm wrong, I'm sure the appellate court will tell you and come back here and then Mr. Bailey can then make his decision about what he's going to do.”   The trial court purported to act under section 1385.4  Additionally, the trial court took “the further step of finding that it would be cruel, unusual, unfair, Draconian and a terrible unjustice [sic ] if Mr. Bailey spent the rest of his life in prison for this petty theft,” purporting to act under the state and federal constitutions.

The People again objected that “the court is going completely against the intent of the Legislature.   They were aware that this would bring into its web people who committed petty thefts with priors and they chose to pass this law, regardless․”

The defendant then entered a plea of guilty and the court parsed as follows:  “․ except for the prior that is alleged in A033037, a 1986 prior on page 2 in the second full paragraph, or on the first full paragraph, the second paragraph.”   The matter was set for sentencing on July 29, 1994.

The Proceedings of July 29, 1994

On July 29, 1994, the court additionally struck “count 2 in case No. A033037,” again purporting to act under section 1385 and the cruel and unusual punishment clauses of the federal and state constitutions and again over the objection of the People.   Before the court struck this prior, the trial prosecutor had indicated that despite the striking of the allegation of a prior felony conviction the plea in the current case was still a three strike case.   In response, the court indicated that it intended to “take that action which permits me to sentence Mr. Bailey as a two strike cases, so that I can arrive at seven years for what this is, commercial burglary involving no loss, no ultimate loss, but a potential loss of about $200 and some odd dollars.”   When the prosecutor inquired if that meant that the court was going to strike “yet another 211,” the court responded “I will strike whatever is necessary to get down to the two strike level, where I can sentence Mr. Bailey to seven years.”

The trial prosecutor then argued (1) that section 667, subdivision (c)(2) prevented the court from suspending imposition or execution of sentence for the prior conviction, which the defendant had admitted at the plea;  (2) that 1385, subdivision (b) and case law prevented the court from striking the prior;  and (3) that section 667, subdivision (g) prevented the court from striking the prior for purposes of plea bargaining, which “the court has done in this case.”

Also during this hearing, the prosecutor described in some detail the defendant's prior offenses, both those alleged as priors in the instant case (including those stricken) and another one which had not been alleged.   The prosecutor also described the defendant's assets to show “that the defendant is not stealing or committing these robberies because he is in need of property․”   The trial court also made some comments about the defendant's record during sentencing.

The defendant was sentenced to seven years in the state prison, computed as double the high term (because it was now a “second strike”) plus an additional year for the remaining prior allegation under section 667.5, subdivision (b).

ISSUES PRESENTED

Appellant contends that the court imposed an unlawful sentence because (1) the trial court judge erroneously found that he had the authority to strike priors alleged under section 667, subdivisions (b) through (i), on the basis that restrictions on the court's power to strike violated the separation of powers doctrine, (2) the trial court erroneously found that the mandated sentence of 25 years to life violated the cruel and unusual punishment clauses of the federal and state constitutions, and (3) the trial court erroneously ruled that Penal Code section 1385, subdivision (b) applies only to enhancements and since sentences in “three strike” cases are not enhancements there is no bar to dismissal of priors in the interest of justice.

DISCUSSION

1. Subdivision (f)(2) of Penal Code Section 667 Does Not Violate The Separation of Powers Doctrine.A. The trial court had no authority to strike the prior under section 1385.

Under the sentencing scheme enacted by the legislature known as the “three strikes” law, the penalty for a person convicted of a felony who has two or more prior violent or serious felony convictions is set forth in section 667, subdivision (e):  “(2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) 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 the indeterminate sentence calculated as the greater of:  ․ [¶] (ii) Imprisonment in the state prison for 25 years․”

There was never any question raised in the trial court that this was the sentence mandated for the defendant by the three strikes law if he were convicted as charged.   However, in order to avoid this mandated sentence, defendant's trial counsel offered a plea bargain to the court of seven years.   On July 15, 1994, defendant, through his trial attorney, offered to “plead for seven years” if the court struck one of the priors alleged under section 667, subdivision (i).   The court agreed to accept this bargain and throughout the proceedings indicated it would take whatever action was necessary to keep that bargain.   The court stated:  “I will strike whatever is necessary to get down to the two strike level, where I can sentence Mr. Bailey to seven years.”   In order to give the defendant his bargained for seven years, the appellant maintains that the trial court illegally struck, on two separate occasions, two separate “three strikes” prior conviction allegations.   The first occasion was before a probation report had been prepared and at the time the court, sitting as a magistrate, certified the plea.   The second occasion was at sentencing in superior court when the trial prosecutor informed the court that the case was still a three strike case because the remaining special allegation for the one prior case number contained two separate robbery convictions.5  We agree with the appellant.

 Under section 1385, subdivision (b), the striking of each prior was improper.   Subdivision (b) 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.” 6  (See People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, 783, fn. 8.)  Additionally, since the defendant had admitted the prior felony convictions, the striking of the second prior conviction allegation was also in violation of section 667, subdivision (c)(2), which provides in part:  “(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:  ․ [¶] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.”

 Even apart from the prohibition of sections 1385, subdivision (b) and 667, subdivision (c)(2), the trial court's action was questionable in that the trial court is forbidden to engage in plea bargaining.  (See People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Keys (1985) 175 Cal.App.3d 431, 220 Cal.Rptr. 760;  People v. Santana (1986) 182 Cal.App.3d 185, 227 Cal.Rptr. 51;  People v. Martin, supra, 32 Cal.App.4th 656, 38 Cal.Rptr.2d at p. 783, fn. 8.)   More importantly, no plea bargaining is allowed in three strikes cases under subdivision (g) of section 667, as will be discussed more fully hereafter.

b) Subdivision (f)(2) of section 667 does not violate the separation of powers doctrine.

The record is clear that the trial prosecutor made the essential points discussed previously pertaining to the trial court's lack of authority to strike or dismiss the allegation, the trial court nevertheless found that it did have the authority to strike the allegations of prior convictions under section 1385.   Although the trial court was not explicit as to the theory on which it was relying pertaining to section 1385, it appears that it was relying on the separation of powers argument made to it by defendant's trial counsel.7  We find this argument deeply flawed for several reasons.

This separation of powers argument focuses on the wording of subdivision (f)(2) of section 667, 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.”   Defense counsel's argument was premised upon the view that this subdivision grants prosecutors the power to dismiss an allegation in furtherance of justice, although it does not give the same power to the court and is thus in contravention of the holding of People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.   The argument is misplaced for the reasons hereafter stated.

(i) Subdivision (f)(2)

 As to subdivision (f)(2), the argument mistakenly asserts that the “three strikes” statute as a whole contains a grant of power to the prosecution to move to strike in the interest of justice, a power which the prosecution might otherwise not have.   On the contrary, the three strikes statute, when read as a whole, limits the overall discretion of the prosecution in cases where that statute applies and furthermore places the exercise of that discretion under the guidance of the trial court in which such a case would be pending.   In order to understand that the three strikes scheme as a whole restricts the discretion of prosecutors, it is necessary to consider subdivision (g) of section 667.   Subdivision (g) specially requires the prosecutor to plead and prove “all known prior felony convictions․” 8  This provision thus expressly removes the prosecutor's discretion relating to whether to allege a qualifying prior conviction in the initial pleading.   In all other situations involving a statute increasing punishment for a prior conviction, the People have the discretion to decline to file qualifying prior convictions of which they are aware, i.e., no other statute creating such an allegation requires the prosecutor to file the allegation.9

 Not only is the prosecutor thus required to file all known qualifying priors under the three strikes scheme, his discretion to thereafter dispose of those priors is limited.   The first sentence of subdivision (g) prohibits prosecutors from striking the allegation of a felony prior for the purposes of plea bargaining.   The only discretion allowed the prosecutor as to qualifying priors is a reference to the very subdivision which underlies the defense argument that the three strikes scheme is a grant of new power to the prosecution—subdivision (f)(2).   The prosecution's limited discretion is to move for the dismissal of the prior conviction enhancement in only two situations—insufficiency of the evidence and “in the furtherance of justice”—and, in either situation, the trial court retains discretion to grant or deny the motion.10  If the court denies the motion, the prosecution must proceed to prove the allegation which it statutorily was required to plead.   Thus, the prosecutor's charging discretion is limited by both the statute and the court.

The net effect of this legislation, therefore, is that the only discretion a prosecutor has, when dealing with a defendant with prior serious or violent felony convictions, is to move to dismiss in furtherance of justice.   Exercise of that discretion is controlled by the court.   Hence, the thrust of the statute is not to grant to the People an arbitrary and unreviewable veto power over the judiciary.   Rather, it is a power given to the judiciary to insure that the prosecution does not use its power to move for dismissal in furtherance of justice except in a proper case.

(ii) The Tenorio Doctrine

The defendant's reliance on People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, is also misplaced.  Tenorio is not applicable to this case for at least two reasons.   First, the statute under consideration (the three strikes legislation) is totally unlike Health and Safety Code section 11718 which the California Supreme Court dealt with in Tenorio.   Additionally, the separation of powers doctrine underlying the reasoning in Tenorio has over the last 25 years been the subject of decisions which must lead to a contrary result in evaluating legislation such as the three strikes law.   A contrast of the Tenorio doctrine with the reasoning underlying People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, decided by the Supreme Court nine years after Tenorio, is revealing.

In Tenorio, the court found unconstitutional Health and Safety Code section 11718, which forbad a court from dismissing a penalty enhancement under that section “except upon motion of the district attorney.”  Section 11718 of the Health and Safety Code provided “that in any proceeding under the narcotics division of the Health and Safety Code (division X), ‘no allegation of fact which, if admitted or found to be true, would change the penalty for the offense charged from what the penalty would be if such fact were not alleged and admitted or proved to be true 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, quoting Health and Safety Code section 11718.)

In holding Health and Safety Code section 11718 to be unconstitutional, the Tenorio court pointed to the historical fact that the Legislature had never denied to the judiciary the power to dismiss since the forerunner of Penal Code section 1385.   In a key phrase, the court stated, “even if the Legislature could constitutionally remove the power to strike priors from the courts, it has not done so,․”  (Id. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   In contrast, nine years later, the constitutional authority of the legislature to remove from the courts the power to strike priors was made clear by the California Supreme Court in People v. Tanner, supra, 24 Cal.3d 514, 519, footnote 3, 156 Cal.Rptr. 450, 596 P.2d 328.   In upholding an implied limitation on judicial discretion to strike an enhancement allegation for the use of a firearm, the court expressly rejected “any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.”  (Ibid.)  The Tanner court continued its reasoning as follows:  “[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.”  [Citation.]  “[T]he legislative branch of the government has the power to declare that in certain ․ cases, probation may not be granted.   The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government.   It does not impair, restrict nor enlarge upon the jurisdiction of the courts.   The function of the courts is to determine the guilt or innocence of the accused.   What disposition may thereafter be made by way of penalty is for the Legislature to determine.”  (Ibid.)

As noted above, the Tenorio case is premised upon the historical fact that the courts had previously been given almost uncontrolled power to dismiss all enhancements, including prior conviction enhancements.   We discern that the law has undergone considerable change in the area.   Consistent with the principle of determinate sentencing, more recent history bears several examples of legislative and electoral prohibitions upon the power of the court to dismiss or strike enhancements and allegations.

For example, Penal Code section 1203.06 requires that one who uses a firearm during commission of certain crimes may not be granted probation.   In People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the court held that the impact of section 1203.06 could not be avoided by the sentencing court striking the gun use allegation under section 1385.

In 1986, Penal Code section 1385, subdivision (b) was added by the Legislature completely eliminating the judicial power to strike prior convictions alleged under Penal Code section 667.   Subdivision (b) states:  “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.”   Indeed, it was the Legislature's intent to abrogate the holding of People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833 and restrict the authority of the trial court to strike certain serious felony prior convictions.   This statutory restriction was upheld in People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.

It is beyond question that the Valencia court emphasized the Legislature's power to limit a trial court's discretion.  (People v. Valencia, supra, 207 Cal.App.3d at p. 1045, 255 Cal.Rptr. 180.)   The court stated:  “We note at the outset ‘that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone.’ ”  (Ibid.)

Further, in 1990, with the passage of Proposition 115, the electorate removed the court's power to strike or dismiss any special circumstances once admitted or found true by adopting Penal Code section 1385.1.

Similarly, the Legislature amended Penal Code section 1170.1, subdivision (h), to eliminate the court's power to strike or dismiss any enhancement for use of a firearm under Penal Code section 12022.5.  People v. Thomas (1992) 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159 held that trial courts thereafter had no power under section 1385 to strike or dismiss such firearm use allegations.   The defense had argued that even after the amendment, which did not add an explicit reference to section 1170.1, subdivision (h), in subdivision (b) of section 1385, the courts retained the power to strike the gun use allegations under section 1385.   The California Supreme Court disagreed as follows:  “In light of the fact that the subject provision is included in a ‘package’ of provisions aimed at enhancing criminal liability for unlawful firearm use, we think it highly unlikely the Legislature intended nonetheless to preserve broad judicial authority under section 1385 to strike a firearm use enhancement ‘in furtherance of justice.’ ”  (People v. Thomas, supra, 4 Cal.4th 206, 213, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

This statutory evolution has greatly restricted the court's power to dismiss on its own motion under section 1385.   It appears to this court that trial courts no longer have unlimited power that cannot be conditioned on the district attorney's concurrence.   We urge and invite the California Supreme Court to revisit this issue and to reconsider its holding in Tenorio.

An additional aspect of Tenorio makes it clearly distinguishable from the issue faced by this court in deciding the constitutionality of the three strikes legislation.   Under section 11718, the court in Tenorio reasoned, “[t]he 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.”  (People v. Tenorio, supra, 3 Cal.3d. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   Furthermore, the power vested in the prosecutor under section 11718 “․ is unreviewable, and may therefore be exercised in a totally arbitrary fashion both in individual cases and by the adoption of countywide policies precluding dismissal of priors regardless of the circumstances of individual cases.”  (Id., at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)

 As previously discussed, there is little discretion now left by the Legislature to either of the other two branches of government to strike a prior conviction filed under the three strikes legislation, and thereby affect the penalty, in contrast to the statute involved in Tenorio.   Under the three strikes legislation, discretion is extremely limited in that prior convictions must be pled and proved.   The district attorney may move to strike the prior conviction only in situations where it is “in the furtherance of justice,” or where there is insufficient evidence, subject to the ultimate discretion of the court.   Since the motion is “pursuant to Section 1385” (see Pen.Code, § 667, subd. (f)(2)), reasons must be stated on the record (see Pen.Code, § 1385, subd. (a)), availing such orders to public scrutiny.   Utilization of the power to strike allegations of prior convictions solely for plea bargaining is prohibited.   We emphasize that the court may, on its own motion, however, without concurrence of the prosecution, unilaterally strike the prior conviction where the court is satisfied that there is insufficient evidence to prove it.

 As pointed out in Tenorio, the separation of powers concept “demands that the branches of government be co-equal․”  (People v. Tenorio, supra, 3 Cal.3d. at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)   Here, unlike the legislation in Tenorio, the “three strikes” legislation has placed “co-equal” limitations on both the executive and judicial branches of government, by requiring that their respective powers relating to prior convictions be exercised, not consecutively, but concurrently, with reasons stated on the record.

In summary, section 667, subdivision (f)(2), unlike Health and Safety Code section 11718, found unconstitutional in Tenorio, does not take from the court any inherent or historical power to strike a prior conviction allegation.   That power was removed from the court as to certain prior enhancements by several acts of the legislature.   As it affects the statute in question, the power to strike a prior enhancement alleged under section 667 was specifically removed by the legislature with the enactment of section 1385, subdivision (b) in 1986 as urgency legislation.   We further note that the constitutionality of the statute was upheld in People v. Valencia, supra, 207 Cal.App.3d at page 1045, 255 Cal.Rptr. 180, an appellate decision with which we are in accord.  (See generally People v. Glaster (1995) 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65.)

2. The Finding By The Trial Court That Sentencing The Defendant To 25 Years To Life Would Be Cruel And Unusual Punishment Under The Federal And California Constitutions Was Unsupported And Erroneous.

 A defendant must overcome a considerable burden in a challenge under the cruel and unusual provision of the California Constitution.  (People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001;  People v. Weddle (1991) 1 Cal.App.4th 1190, 1197, 2 Cal.Rptr.2d 714;  People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529, 212 Cal.Rptr. 605.)   In the instant case, neither the defendant nor the trial court in formulating its ruling made an adequate showing that the mandated sentence would be cruel and unusual punishment for this defendant for this crime.   The trial court's explanation, repeated several times, was its belief that the mandated sentence would be cruel and unusual punishment since the court desired to view the crime as merely a “petty theft.”   As previously stated, it is the function of the legislative branch to define crimes and prescribe punishments.  (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.)   The validity of legislative enactments will not be questioned “ ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ”  (People v. Wingo, supra, 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)   The record in this case indicates that the trial court reached its determination that the punishment would be cruel and unusual in order to bring about a plea bargain with the defendant.   The court hardly considered any of the factors required to be weighed before making a determination;  instead the court determined to strike the prior on the basis of the charge alone.

The Supreme Court in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, enunciated a broad rule that a punishment may violate the California Constitution if “it is so disproportionate to the crime for which it was inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (Id. at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   As a guideline the Lynch court employed a three-part analysis:  (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society,” (2) a comparison of the challenged penalty with punishments within the same jurisdiction for different offenses deemed more serious, and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.”  (Id. at pp. 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

 The Lynch analysis applies to the specific defendant before the court.  (People v. Dillon (1983) 34 Cal.3d 441, 480, 194 Cal.Rptr. 390, 668 P.2d 697.)  “[A] punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability.”  (Id. at p. 480, 194 Cal.Rptr. 390, 668 P.2d 697.)   Dillon amplified the three-part Lynch test with additional factors, i.e., the circumstances and nature of the offense and the defendant's role in it, the nature and background of the defendant, and the punishments imposed on other participants in the crime.   A court also looks to “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.”  (Id., at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   Relevant factors are the defendant's “age, prior criminality, personal characteristics, and state of mind.”   The analysis depends on the particular factors of each individual case.  (People v. Wingo, supra, 14 Cal.3d at p. 177, 121 Cal.Rptr. 97, 534 P.2d 1001.)

A. The Particular Defendant Before The Trial Court.

 In considering the defendant's age, criminal history and other characteristics in light of the threat to public safety, the courts may consider the underlying crimes, the police reports, police investigators' statements, and, importantly, the probation officers' reports.  (People v. Young (1992) 11 Cal.App.4th 1299, 1310, 15 Cal.Rptr.2d 30;  People v. Hernandez (1985) 169 Cal.App.3d 282, 290, 215 Cal.Rptr. 166.)   A defendant's lack of regard for rehabilitation during past probation periods may be a factor in denying him relief.  (People v. Shippey (1985) 168 Cal.App.3d 879, 887, 214 Cal.Rptr. 553.)

The particular facts of the case at hand, and the individual characteristics and background of the defendant before the court show a threat to public safety.   The trial court was aware of the facts relating to defendant's prior robbery convictions because the trial prosecutor in open court put the details of many of the prior convictions on the record.   These details included the great bodily injury suffered by one of the defendant's victims (including “a broken jaw, stitches in his mouth, a plate in his head ․,” the fact that he used a knife in the commission of another robbery, and his repeated failure on parole, including the fact that the defendant was on parole at the time he committed the instant offense.   From the record on appeal we do not detect that the trial court gave weight to the defendant's prior record.

The trial court's repeated explanation for its belief that the mandated sentence would be cruel and unusual punishment was to view the current crime as merely a “petty theft.”   The following statement appears to be representative of the trial court's approach on the issue:  “He went into the K–Mart where he had every right to be as a member of the public and shoplifted a couple of hundred dollars' worth of tools.”   When the trial court does consider defendant's past record, it discounts it on the following basis:  “One of the things that I can see in Mr. Bailey's case, that I see in many cases, is the pattern of offending.   The patterns [sic ] is to start out with some very serious crimes in one's youth and one's manhood, and as one matures and gets older, the steam gets out of men especially, and they become thieves instead of hurtful thieves, and that appears to be what has become of Mr. Bailey.” 11

 It appears that the trial court's consideration of the defendant's aggravated record and recidivism was to lead the court to find that the prior record was a mitigating factor on the basis that the current crime was not as bad as his previous ones.   We find that the court committed error in narrowly focusing on the facts of the crime currently before it.

B. The Current Crime.

 A court also looks to the underlying offense in light of the degree of danger such a crime presents to society.  (Lynch, supra, 8 Cal.3d at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921.)   Recidivism and multiple offenses pose a manifest danger to society.  (People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406.)   Recidivism is a relevant factor in determining the length of a prison sentence.   Recidivist statutes provide for harsher penalties that are in proportion to a defendant's persistence in committing crimes after previous punishments have proved ineffective.  (People v. Jameson (1986) 177 Cal.App.3d 658, 662, 223 Cal.Rptr. 108.)   Recidivist statutes have harsher sentences because they deal with people who, by repeated criminal acts, have shown that they are incapable of conforming to the norms of society.  (Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382.)

 The punishment imposed under Penal Code section 667, subdivision (e) stem from a defendant's recidivism, which by definition is a threat to public safety.   The trial court erred in disregarding recidivism as a factor in this instance.

C. Comparative Punishments.

 The cruel or unusual analysis also requires a comparison of different inter- and intra-jurisdiction punishments, and a defendant has the burden of establishing that his or her punishment is greater than more serious offenses in California, and that similar offenses in other states do not carry punishments as severe.  (In re Lynch, supra, 8 Cal.3d at pp. 427–429, 105 Cal.Rptr. 217, 503 P.2d 921;  People v. Wingo, supra, 14 Cal.3d at p. 175, 121 Cal.Rptr. 97, 534 P.2d 1001.)

A sentence imposed under Penal Code section 667, subdivision (e) must be compared to other recidivist crimes.  “[D]efendant's sentence is not the product of an isolated conviction for a single offense but is the result of his conviction ․ after having previously been convicted․”  (People v. Karsai, supra, 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406.)   Thus, defendant's sentence in the instant case must be compared with punishments meted out in California for other recidivist offenders, and compared with punishment by other states under their recidivist laws.

 Penal Code section 667, subdivision (e) is a newly enacted statute, and a comparison to punishment for the same offense in other jurisdictions may not be possible.   However, an inability to compare California law with that of other jurisdictions does not violate any state or federal constitutional provision or, alone, require reversal.  (People v. Barrera (1993) 14 Cal.App.4th 1555, 1570, fn. 8, 18 Cal.Rptr.2d 395.)

 Nevertheless, the punishment prescribed under section 667, subdivision (e)(2), is similar to the punishment in other California recidivist statutes.   For example, section 667.7, subdivision (a)(1) mandates a life sentence with a minimum parole date of 20 years for the conviction of certain offenses involving great bodily injury with two prior prison terms for similar offenses.   If the defendant has three prior prison terms for these types of crimes and is convicted of a fourth, then his sentence is life without parole.  (§ 667.7, subd. (a)(2);  see People v. Decker (1988) 199 Cal.App.3d 694, 697–699, 245 Cal.Rptr. 40.)   Also, a defendant can receive a life sentence, with a minimum parole date in 17 years, if he is convicted of certain drug offenses involving minors if he has served two prior prison terms for certain drug crimes.  (§ 667.75.)  Section 667, subdivision (e)(2) is not disproportionate to other punishment sections dealing with recidivists under California law.

D. The Eighth Amendment of the United States Constitution.

Neither the trial court's determining nor the defendant's sentence on this issue fare any better under the federal constitution.   In Rummel v. Estelle, supra, 445 U.S. at 285, 100 S.Ct. at 1144, the United States Supreme Court upheld a life sentence imposed under a Texas recidivist statute for a defendant convicted of obtaining $120.75 by false pretenses.   The defendant's two prior convictions were for fraudulent use of a credit card and passing a forged check.  (Id. at p. 265, 100 S.Ct. at pp. 1134–1135.)   The court characterized the Texas statute as “․ nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole.”  (Id. at p. 278, 100 S.Ct. at p. 1141.)   In Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, the United States Supreme Court upheld a mandatory life sentence without the possibility of parole for possession of more than 650 grams of cocaine.

3. The Dictates of Penal Code Section 4 Require That A Statute Be Construed According To The “Fair Import Of Its Terms” With A View “To Effect Its Objects.”

The respondent further advances that Penal Code section 1385, subdivision (b) applies only to “enhancements,” and the sentences in “three strike” cases are not “enhancements.”   Therefore section 1385, subdivision (b), does not bar dismissals in the furtherance of justice.

 We find such a construction to be in derogation of Penal Code section 4, which provides that:  “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.   All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”  (Italics added.)   We find “the fair import” of the language of subdivision (b) of section 1385 much broader than the narrow construction urged by the respondent and we interpret the section to preclude the courts from striking or dismissing prior felony conviction allegations pled under the “three strikes” law.

DISPOSITION

The judgment is reversed and the case is remanded to the trial court for resentencing consistent with the views expressed herein, or for the defendant to withdraw his plea upon proper motion.

I respectfully dissent.   In my view, the trial court properly ruled it retained the discretionary power to strike a prior conviction in the interest of justice without a prosecutor's motion under California's new “Three Strikes” law.   I first consider this a proper construction of that law.   More importantly, I consider it the only constitutional construction of the law.   This dissent first discusses why I conclude the language of the “Three Strikes” law leaves trial judges with this traditional power to dismiss a prior felony conviction when sentencing a defendant and to do so without a request or other form of acquiescence from the prosecutor.   Then the dissent discusses why the law would violate the constitutional guarantee of separation of powers were it to be interpreted to deny the judicial branch this discretion.

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.

The People's appeal contends the trial court could have dismissed respondent's prior conviction in the interest of justice, but only if the prosecution had filed a motion requesting that dismissal.   For reasons explained below, I conclude under the language of the relevant code provisions the trial court retained discretion to dismiss the prior conviction without obtaining the prosecution's consent.  Penal Code section 1385 subdivision (b) did not deprive the court of its authority to dismiss a prior conviction under 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.   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 1 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.) 2

In March 1994, the Governor signed into law Assembly Bill No. 971, commonly known as the “three strikes” law.  (§ 667, subds. (b)–(i).)   The commonly understood 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”).

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, 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 667.3  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).   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.”  (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 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 with a term “twice the term otherwise provided as punishment” for that offense.4

I conclude, for the reasons set forth above, 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.5

Therefore, 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 parties assume 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, “[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 parties have assumed 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 always 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, 30 Cal.3d 470, 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 before us 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 at page 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.   Deleting the trial court's dismissal power under section 1170.1 would make no sense if the 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.   Moreover, 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 granting probation to what it was before the amendment, thus rendering the amendment a nullity.   Furthermore, there was legislative history showing the specific purpose of the amendment was to deny probation “without any exception ․ in the interests of justice.”  (Emphasis in original) (Ibid. 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 470, 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.  (Ibid. at p. 483, 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 repeated Williams' “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 stated intent of the Legislature in enacting the “three strikes” law was to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (§ 667, subd. (b).)  The trial court's continued authority to dismiss a prior conviction in the interests of justice does not nullify that legislative intent.   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.  (People v. 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 we examine subdivision (f) 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.   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.

II. SECTION 667, SUBDIVISION (F)(2) IS UNCONSTITUTIONAL TO THE EXTENT IT IS CONSTRUED TO GRANT 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), properly construed, leaves intact the trial court's power to dismiss a prior conviction on its own motion in furtherance of justice, I am even more persuaded that 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.)

The following discussion assumes that under section 667, subdivision (f)(2) the trial court can only dismiss a prior conviction in the interests of justice on motion of the prosecuting attorney.

In enacting the “three strikes” law, the Legislature did not totally prohibit the trial court from dismissing a prior conviction in the furtherance of justice.   Rather, it provided the trial court could only do so on motion of the prosecuting attorney.  Section 667, subdivision (f)(2) provides “[t]he prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385․”   I turn, therefore, to the question whether the Legislature may, consistent with article III, section 3 of the Constitution 6 , require the trial court to obtain the prosecution's approval before exercising its general statutory power to strike prior convictions.

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. 211.)   However, there is no decision by the Supreme Court or Court of Appeal 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.7  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 People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 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, 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 the analysis of section 667 as a limitation on prosecutorial power.   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).) 8  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 People v. Tenorio, supra, 3 Cal.3d 89, 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.   I find 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 Id., 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 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;  see discussion, supra, pp. 211–212.)

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, (1989) 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 (1992) 4 Cal.4th 206, 211–213, 14 Cal.Rptr.2d 174, 841 P.2d 159;  see discussion, supra, p. 211.)

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, 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 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) violates the separation of powers provision of the California Constitution by requiring the consent of the prosecutor before the trial court may exercise its authority to dismiss an allegation of a prior strike.

For both of these independent and sufficient reasons, I would affirm the trial court's discretion to dismiss the prior conviction and thus would affirm the court's exercise of that discretion in sentencing respondent.

FOOTNOTES

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

2.   Commonly referred to as a “three strikes” allegation.   All references to “the three strikes law” or the “three strikes sentencing scheme” refer to Assembly Bill 971, signed into law by the Governor on March 7, 1994.   All actions of the trial court challenged in this appeal occurred before the passage of Proposition 184 on November 8, 1994, the “three strikes” initiative.

3.   It was further alleged that the convictions in case Nos. A033037 and A033277 were within the meaning of section 1203, subdivision (e)(4).   The complaint also alleged defendant was convicted of Health and Safety Code section 11359 (possession of marijuana for sale) on November 18, 1986, (case No. A033254), within the meaning of section 1203, subdivision (e)(4).   The allegations pertain to ineligibility for probation and not to “the three strikes law” therefore these allegations are treated as irrelevant on this appeal.   We also note a reference in the record to a 1993 burglary conviction for which the defendant served a state prison sentence, but curiously the People failed to allege this “prior” and we therefore treat it also as irrelevant on this appeal.

4.   As directed by the trial court, the docket entry states:  “The court finds that a 25 years to life sentence for a petty thief [sic ] of merchandise totaling less than $300 is a cruel, unjust and draconian punishment.   Therefore pursuant to Penal Code Section 1385, the court strikes the prior allegation per 667.5(b) as to case A033277 thereby reducing this instant offense from a third strike to a second strike case.”

5.   Neither party raised an issue in the trial court nor on appeal as to whether the conviction of the two counts in case No. A033037 constituted “one” or “two” priors for the purposes of the three strikes statute, but impliedly concede that “two” priors are involved.

6.   Robbery is defined as a serious felony in section 1192.7, subdivision (c) and is also one of the felonies identified in section 667, subdivision (d).

7.   The trial court distinguished the finding that it had the authority to strike the allegation from the substantive reason for striking it—i.e., that “it would be cruel, unusual, unfair, Draconian and a terrible unjustice [sic ] if Mr. Bailey spent the rest of his life in prison for this petty theft” under the state and federal constitutions.

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

9.   Penal Code section 969 may at first glance appear to create an exception to this rule in that it provides in its last sentence that “If more than one previous conviction is charged, the date of the judgment upon each conviction may be stated, and all known previous convictions, whether in this State or elsewhere, must be charged.”   However, typically, cases appear to construe this sentence as part of a notice requirement (see, e.g., People v. LoCicero (1969) 71 Cal.2d 1186, 1192, 80 Cal.Rptr. 913, 459 P.2d 241) and do not authoritatively discuss it in terms of the district attorney's discretion.   The section is unofficially titled “Prior convictions;  form of allegation” and generally describes the manner in which a prior conviction must be alleged;  thus it would not appear to mandate the filing of any particular prior offense.   Even if it were interpreted to limit a prosecutor's discretion, the prosecutor would still have discretion whether to file any priors at all.  Section 969, in its entirety, is as follows:  “In charging the fact of a previous conviction of felony, or of an attempt to commit an offense which, if perpetrated, would have been a felony, or of theft, it is sufficient to state, ‘That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a felony (or attempt, etc. or of ․ theft).’   If more than one previous conviction is charged, the date of the judgment upon each conviction may be stated, and all known previous convictions, whether in this State or elsewhere, must be charged.”

10.   While subdivision (f)(2) specifically provides the court power to dismiss a prior allegation made under that statute only for insufficiency of the evidence, the power to grant the People's motion to dismiss in furtherance of justice must be implied.   To hold otherwise would lead to the absurd result that the court had no discretion to grant the motion of the People made according to statute.  “Whenever possible, courts must construe statutes harmoniously and avoid absurd or anomalous results.”  (People v. Gonzalez (1990) 51 Cal.3d 1179, 1221, 275 Cal.Rptr. 729, 800 P.2d 1159.)

11.   In one other instance, the court makes reference to one of the defendant's previous crimes as “truly a horrific crime,” but apparently in the context of criticizing the prosecutor's office for not seeking the maximum sentence on that crime and to draw the comparison that the sentence on the current crime would be harsher under the three strikes law than “the horrific one.”   The court's comments may be taken to indicate that the trial court generally ignored the defendant's recidivism in its determination of the issue of cruel and unusual punishment in this instance.

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

2.   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 we are able to resolve the issue before us on narrower grounds, this dissent need not address the scope of a trial court's inherent powers here.

3.   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.

4.   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 I have pointed out, uses “enhancement” language in subdivision (a) and “base term” language in subdivision (e)(1).

5.   Other appellate courts considering the question have also concluded section 667, subdivision (e)(1) is not an enhancement provision.  (People v. Martin (1995) 32 Cal.App.4th 656, 666–668, 38 Cal.Rptr.2d 776;  People v. Ramirez (1995) 33 Cal.App.4th 559, 566–567, 39 Cal.Rptr.2d 374.

6.   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.

7.   The only 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.

8.   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.