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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert T. DOYLE et al., Defendants and Appellants.

No. A068529.

Decided: February 15, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Peggy S. Ruffra, Deputy Attorney General, San Francisco, for plaintiff and respondent. Martin James Elmer, Berkeley, John Ward, Oakland, for defendants and appellants.


This case presents multiple issues concerning jury instruction on reasonable doubt and the legislative version of California's “Three Strikes” law (Pen.Code, § 667, subds. (b)–(i)).   We hold:  the jury instruction on reasonable doubt proposed in People v. Freeman (1994) 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249 satisfies federal due process concerns;  (2) the Three Strikes law does not change the duties of judges or prosecutors and thus is valid as urgency legislation;  (3) the Three Strikes law does not violate the separation of powers doctrine by eliminating prosecutorial charging discretion;  (4) any error by the trial judge in concluding she lacked discretion to dismiss a prior strike allegation was harmless in light of her decision to impose the middle term rather than the lower term and her omission to strike a one-year prison term enhancement;  and (5) ambiguities in the Three Strikes law's 20 percent limitation on accumulation of prison conduct credits do not rise to the level of facial unconstitutional vagueness but are properly resolved on a case-by-case basis as issues arise in actual application of the law's credit provisions.


Robert T. Doyle and Lamont Alexander robbed 71–year–old Alice Hsueh as she was walking home from her bank.   Alexander emerged from a car driven by Doyle and grabbed Hsueh's tote bag, pushed her to the ground and yanked the bag from her hand, fracturing her left elbow and causing swelling in her left leg and hip.

A jury convicted both men of robbery, and as to Alexander found that the victim was more than 60 years old (Pen.Code, § 1203.09, subd. (f) [probation ineligibility] ).   The court found that Alexander had a prior serious felony conviction for a 1980 murder (Pen.Code, § 667, subd. (e)(1))—i.e., he was a “one strike” defendant—and a prior prison term for a 1986 drug offense (Pen.Code, § 667.5, subd. (b)).  The court sentenced Doyle to the middle term of three years.   The court sentenced Alexander to the middle term doubled to six years, plus a five-year enhancement for the prior serious felony conviction, a one-year enhancement for the prior prison term, and a one-year enhancement based on the victim's age (see Pen.Code, § 667.9, subd. (a) [enhancement for crimes against person more than 65 years old] ), for a total sentence of 13 years.


A. Doyle's Sentence **

B. Reasonable Doubt Instruction

The following points are raised only by Alexander.   We begin with his claim that the court erred in instructing the jury on reasonable doubt.

 The United States Supreme Court upheld California's standard reasonable doubt instruction, CALJIC No. 2.90, in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.)   However, Victor criticized the use of the phrase “moral certainty” in the instruction.  (Id. at p. ––––, 114 S.Ct. at p. 1248, 127 L.Ed.2d at p. 597.)   Subsequently, the California Supreme Court said in People v. Freeman, supra, 8 Cal.4th at page 504, 34 Cal.Rptr.2d 558, 882 P.2d 249 that “trial courts might, in the future, safely delete the following phrases in the standard instruction:  ‘and depending on moral evidence,’ and ‘to a moral certainty.’  [¶] Making these changes, and no others, would both avoid the perils that have caused appellate courts to caution trial courts against modifying the standard instruction, and satisfy the concerns the high court has expressed regarding that instruction.”  (Fn. omitted.)   CALJIC No. 2.90 has since been revised as suggested in Freeman (CALJIC No. 2.90 (5th ed. 1995 supp.) p. 44.), as has the definition of reasonable doubt in Penal Code section 1096.3

In the present case, the court instructed the jury precisely as Freeman proposed.   Alexander claims this was a denial of the federal constitutional right to due process because the revised instruction, permitting a jury verdict based on “an abiding conviction of the truth of the charge” (see ante, fn. 3), is insufficient to convey the degree of certainty required for proof beyond a reasonable doubt.   Alexander proposes that we ignore Freeman because its pronouncements on revision of CALJIC No. 2.90 are dicta.

It is well settled, however, that “the dicta of our Supreme Court are highly persuasive.”  (E.g., Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328, 27 Cal.Rptr.2d 406.)   In Freeman, our Supreme Court took great care in suggesting changes to CALJIC No. 2.90 that would shore up its constitutionality, and concluded that these changes, while not required, were “permissible.”  (People v. Freeman, supra, 8 Cal.4th at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   The court's suggestions were not inadvertent or ill considered.  (See In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403, 24 Cal.Rptr.2d 57 [dictum in Supreme Court decision not inadvertent or ill considered but “highly germane and compellingly persuasive”].)   It is inconceivable that our state's highest court would suggest “permissible” revisions in Freeman, and then find those revisions unconstitutional in the present case.   If there is to be any retreat from Freeman, it should come from the California Supreme Court, not us.   We conclude, based on the “highly persuasive” pronouncements in Freeman, that the instruction given here satisfies federal due process concerns.

C. Validity of “Three Strikes” Urgency Legislation

Alexander raises multiple issues pertaining to various aspects of the legislative version of California's new “Three Strikes” law (Pen.Code, § 667, subds. (b)–(i)).

Alexander contends the Three Strikes law, enacted as urgency legislation effective March 7, 1994 (Stats.1994, ch. 12, § 2, p. 59), violates article IV, section 8, subdivision (d) of the California Constitution, which states that urgency legislation may not “change the salary, term, or duties of any office.”   According to Alexander, the Three Strikes law changes the duties of judges by removing some of their discretionary sentencing powers, and changes the duties of prosecutors by limiting their discretion in plea bargaining and in pleading and proving prior felony convictions.

This constitutional limitation on urgency legislation does not, however, apply to “[a]n addition or subtraction in relation to the volume of the duties required to be performed by an officer, which does not substantially affect the primary duties” of the office.  (Martin v. Riley (1942) 20 Cal.2d 28, 37, 123 P.2d 488.)   Thus, in Martin, the court held that urgency legislation prescribing the organization of the State Guard as part of the militia subject to a call into service by the governor, enacted within days after the bombing of Pearl Harbor, did not change the duties of the governor.   There were changes in “the limitations respecting the organization of the State Guard,” but they were “for the most part merely additions to similar duties already imposed by law․”  (Ibid.)   Similarly, in People v. Robertson (1982) 33 Cal.3d 21, 46–47, 188 Cal.Rptr. 77, 655 P.2d 279, the court held that urgency legislation imposing a time limit on the decision of capital appeals did not affect the court's primary duties, which include the exercise of “appellate jurisdiction in death penalty cases.”   In contrast, in Stockburger v. Jordan (1938) 10 Cal.2d 636, 649–650, 76 P.2d 671, the court held there was a change of duties in legislation which gave a state officer extensive powers and duties in the leasing of lands for oil and gas drilling, where prior law prohibited such leases.

 Here, the primary duties at issue are sentencing by judges and prosecuting by prosecutors.   As in Martin and Robertson, the Three Strikes law merely adds to those primary duties, which are already imposed by law.   This case is not like Stockburger, where legislation conferred powers and duties where no similar duties had previously existed.  Martin and Robertson involved additions to an existing framework of duties;  Stockburger involved the creation of an entirely new and completely different framework.   This case is more like the former than the latter, involving additions to existing frameworks of sentencing and prosecuting duties.   The primary duties of sentencing and prosecuting are not substantially affected;  thus there is no violation of article IV, section 8, subdivision (d) of the California Constitution.  (Accord, People v. Cartwright (1995) 39 Cal.App.4th 1123, 1133–1134, 46 Cal.Rptr.2d 351.)

D. Control of Prosecutor's Charging Discretion

Alexander claims the Three Strikes law violates the separation of powers doctrine (Cal. Const., art. III, § 3) in that the Legislature has usurped traditional prosecutorial charging discretion by requiring prosecutors to “plead and prove” all prior convictions.  (Pen.Code, § 667, subds. (f)(1) & (g).)

 District attorneys are part of the executive branch of state government.   Their prosecution of a case, including a charging decision, involves an exercise of executive power.  (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Arauz (1992) 5 Cal.App.4th 663, 668, 7 Cal.Rptr.2d 145;  People v. Smith (1975) 53 Cal.App.3d 655, 659, 126 Cal.Rptr. 195;  People v. Municipal Court (1972) 27 Cal.App.3d 193, 204, 103 Cal.Rptr. 645;  see generally Cal. Const., art. V, § 13 [Attorney General is subject to “powers and duties of the Governor” and has “direct supervision over every district attorney”].)

District attorneys are therefore within the ambit of the separation of powers doctrine:  “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 excepted as permitted by this Constitution.”  (Cal. Const., art. III, § 3.) 4

This does not mean, however, that the Legislature may not control the exercise of prosecutorial authority.   The separation of powers doctrine includes the exception that one branch of state government may exercise the power of another “as permitted by this Constitution.”  (Ibid.)  In the present context, such permission is constitutionally conferred on the Legislature by article XI, section 1, subdivision (b), which states, “The Legislature shall provide for county powers․”   This provision is a restatement, with no substantive change (see Cal. Const., art. XI, § 13), of former article XI, section 5, which stated, “The Legislature ․ shall provide for the election or appointment, in the several counties, of ․ district attorneys, ․ and shall prescribe their duties and fix their terms of office.”  (Italics added.)   The Legislature has prescribed the duties of district attorneys in the Government Code (Gov.Code, § 26500 et seq.) and in various provisions of the Penal Code (e.g., Pen.Code, § 948 et seq. [rules of pleading].)  (See generally County of Madera v. Gendron (1963) 59 Cal.2d 798, 802, 31 Cal.Rptr. 302, 382 P.2d 342 [“The duties of the district attorney, as fixed by the Legislature, apply uniformly throughout the state.”].)

In performing its constitutional mandate to prescribe the duties of district attorneys, the Legislature has conferred on them discretionary charging authority.  (Gov.Code, § 26500.)   What the Legislature may constitutionally confer, the Legislature may constitutionally control.

Legislative control of charging discretion is nothing new in California.   Like the Three Strikes law, California's first habitual criminal legislation (former Penal Code section 644 [enacted in 1923, amended in 1927 and repealed in 1976] ) compelled prosecutors to charge prior convictions as the basis for a life sentence.  (People v. Ashcraft (1956) 138 Cal.App.2d 820, 826, 292 P.2d 676 [allegation of prior “is imperative, if known”];  People v. Clapp (1944) 67 Cal.App.2d 197, 199, 153 P.2d 758 [district attorney “was required” to allege prior];  In re Boatwright (1931) 119 Cal.App. 420, 424, 6 P.2d 972 [habitual criminal act “made it compulsory to charge all prior convictions”];  see generally In re Rosencrantz (1928) 205 Cal. 534, 536, 271 P. 902.)   This charging requirement survives today in Penal Code section 969, which states that “all known previous convictions, whether in this State or elsewhere, must be charged.”   Similarly, the Legislature has more recently prescribed mandatory prosecution of career criminals and repeat sexual offenders in certain situations.  (Pen.Code, §§ 999e, 999l.)

 Because the constitution permits (and indeed requires) the Legislature to prescribe the duties of district attorneys, legislative control of prosecutorial charging discretion is excepted from the separation of powers doctrine as an exercise of power “permitted by this Constitution.”  (Cal. Const., art. III, § 3.)   Thus, the Legislature has not unconstitutionally encroached upon the executive branch in requiring prosecutors to plead and prove prior strike allegations under the Three Strikes law.5

E. Exercise of Discretion to Dismiss the Strike Allegation

Alexander urges us to remand the cause to permit the trial court to exercise its discretion, pursuant to Penal Code section 1385, to dismiss the prior strike allegation arising from the 1980 murder.   We held in People v. Casillas (1995) 40 Cal.App.4th 1506, 1508, 47 Cal.Rptr.2d 734, that the Three Strikes law does not abrogate existing trial court authority to dismiss an allegation of a prior serious or violent felony conviction in the furtherance of justice under Penal Code section 1385, subdivision (a), and thus trial judges retain discretion to dismiss, on their own motion, a prior strike allegation under the Three Strikes law.   This issue is pending before the California Supreme Court in People v. Superior Court (Romero) (1995) 40 Cal.App.4th 183, 37 Cal.Rptr.2d 364, review granted April 13, 1995 (S045097).

The record in the present case does not indicate whether the trial judge believed she had discretion to dismiss the prior strike allegation.   Defense counsel filed a written motion “inviting” the court to do so, but the judge was silent on this point, other than to find the prior conviction allegation to be true and impose a doubled base term.

 Nevertheless, even assuming the judge erroneously believed she lacked discretion to dismiss the strike allegation, we must conclude the error was harmless and does not require remand for resentencing.   Under these circumstances, resentencing is unnecessary if the record clearly indicates that the judge would not have exercised such discretion even had she been aware that she had it.  (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686.)   That is the situation here, for two reasons.   First, the judge chose to impose the doubled middle base term of six years.6  In making this sentence choice, the judge determined that the circumstances did not justify the doubled lower base term of four years.   (Pen.Code, § 1170, subd. (b).)  Dismissal of the strike allegation would have eliminated the doubling of the middle term, resulting in an even lesser base term of three years.   The judge having determined that the circumstances did not justify the doubled lower base term of four years, it is inconceivable that, had she correctly perceived her sentencing discretion, she would have taken action resulting in an even more lenient base term of three years.   Second, the judge had discretion to strike the one-year prison term enhancement arising from the 1986 drug offense (Pen.Code, § 667.5, subd. (b)), but did not do so.7  Absent the exercise of discretion to reduce Alexander's total sentence by one year, it is, again, inconceivable that the judge would have reduced the sentence by three years by dismissing the strike allegation.   These sentencing choices demonstrate that the judge necessarily would have (and perhaps in fact) concluded that the circumstances did not justify an exercise of discretion to dismiss the prior strike allegation.

F. Vagueness of Conduct Credit Provision

Alexander challenges as facially vague the provision of the Three Strikes law imposing a 20 percent limitation on the accumulation of prison conduct credits by “strike” prisoners.   Subdivision (c)(5) of Penal Code section 667 states, “The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.”   Alexander contends the 20 percent limitation is unconstitutionally vague because it can be interpreted in three different ways:  (1) a prisoner earns one day of credit for every four days of work;  (2) a prisoner earns one day of credit for every day of work until the total credit reaches one-fifth of the term imposed, whereupon no further credits accrue unless the prisoner loses accumulated credits;  or (3) a prisoner earns one day of credit for every day of work with no limit on accrual, but only an amount equal to one-fifth of the term imposed can be used to reduce the term.

 A vague sentencing provision may be constitutionally infirm if it does not state with sufficient clarity the consequences of violating a criminal statute.  (People v. Sipe (1995) 36 Cal.App.4th 468, 480, 42 Cal.Rptr.2d 266.)   That is not the situation here.   The Three Strikes law clearly states that the consequences of its violation are imprisonment for at least 80 percent of a specified period of time.   The vagueness asserted by Alexander has only to do with the manner in which the prisoner earns the 20 percent credit—for example, the number of days he or she must work.   That vagueness does not rise to the level of constitutional infirmity, any more than does the lack of statutory provision for what type of work must be performed in order to earn credit or how many hours must be worked each day.   The ultimate consequence of recidivist criminal conduct—a known period of imprisonment—is patent.

An ambiguous statute may be facially unconstitutional if it threatens the exercise of First Amendment or other constitutional rights (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201, 246 Cal.Rptr. 629, 753 P.2d 585), but that rule does not apply here, because the Three Strikes law does not threaten the exercise of constitutional rights.  (People v. Sipe, supra, 36 Cal.App.4th at p. 481, 42 Cal.Rptr.2d 266.)   The ambiguities asserted by Alexander are properly resolved not by facial invalidation, but on a case-by-case basis as issues arise in actual application of the Three Strikes law's credit provisions.  (Ibid.)  That application has not yet occurred here.



Alexander's abstract of judgment is amended to (1) strike the one-year enhancement based on the victim's age and specify a total sentence of 12 years, and (2) award total presentence credit of 295 days.   In all other respects the judgments are affirmed.


FOOTNOTE.   See footnote *, ante.

3.   CALJIC No. 2.90 formerly defined reasonable doubt as follows:  “It is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”  (Italics added;  see People v. Freeman, supra, 8 Cal.4th at p. 501, fn. 8, 34 Cal.Rptr.2d 558, 882 P.2d 249.)   The 1994 revision to CALJIC No. 2.90 and 1995 amendment to Penal Code section 1096 delete the italicized phrases as suggested in Freeman.

4.   In contrast, local government itself is a legal entity distinct from the three branches of state government and is outside the separation of powers doctrine.  (People v. Provines (1868) 34 Cal. 520, 534;  20 Ops.Cal.Atty.Gen. 69, 70 (1952).)

5.   We also note that, as a practical matter, because the Three Strikes law vests prosecutors with discretion to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice (Pen.Code, § 667, subd. (f)(2)), the law does not so much eliminate charging discretion as shift its exercise to a later date, after the information is filed (assuming the case gets that far without disposition).

6.   Defense counsel asked for the lower or middle term;  the prosecutor asked for the maximum possible sentence.

7.   Alexander's probation report listed one circumstance in mitigation (Cal.Rules of Court, rule 423(a)(8) [motivation by desire to provide necessities for family or self] ), which would have supported a decision to strike the one-year enhancement.  (People v. Alexander (1992) 8 Cal.App.4th 602, 605, 10 Cal.Rptr.2d 450.)

FOOTNOTE.   See footnote *, ante.

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.

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