PEOPLE v. ROMERO

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Jesus ROMERO, Real Party in Interest.

No. D022175.

Decided: January 13, 1995

Edwin L. Miller, Jr., and Paul Pfingst, Dist. Attys., Thomas F. McArdle and Paul M. Morley, Deputy Dist. Attys., for petitioner. No appearance for respondent. Francis J. Bardsley, Public Defender, and Gary R. Nichols, Deputy Public Defender, for real party in interest.

In this action we are asked to determine whether a trial court may on its own motion and in the interest of justice strike or dismiss allegations of prior violent or serious felony convictions (sometimes hereafter referred to as “life prior” allegations) which, under the recently enacted “three strikes” law, require imposition of an indeterminate sentence of at least 25 years to life.  (Pen.Code, § 667, subds. (b)–(i).)   Here, the trial court, over the objection of the prosecutor, struck the “life prior” allegation pursuant to section 1385, subdivision (a).   The court ruled that the “three strikes” legislation violates the separation of powers doctrine and the punishment imposed under the measure would be cruel and unusual.   Because we conclude the “three strikes” legislation neither violates the separation of powers doctrine nor constitutes cruel or unusual punishment, we grant the petition.

BACKGROUND

I“Three Strikes” Legislation and Initiative

The year 1994 brought extensive changes to California sentencing law with respect to certain repeat felony defendants.   Efforts to change the law were made both through the initiative process and the Legislature, resulting in two almost identical laws commonly known as the “three strikes” laws being enacted by the Legislature and the voters.

The legislative efforts came to fruition first when on March 7, 1994, the Governor signed into law Assembly Bill No. 971.  (Stats.1994, ch. 12, p. 56.)   The legislation amended Penal Code 1 section 667 to increase significantly the period of imprisonment for persons convicted of any felony offense who have previously been convicted of one or more serious felonies within the meaning of section 1192.7, subdivision (c) and/or violent felonies within the meaning of section 667.5, subdivision (c).2  (§ 667, subd. (d)(1).)   The stated intent of the Legislature was “to ensure longer prison sentences and greater punishment.”  (§ 667, subd. (b).)  The new law, which was passed overwhelmingly by the Assembly and the Senate,3 was denominated urgency legislation and took effect immediately upon signature by the Governor and filing by the Secretary of State.  (Stats.1994, ch. 12, § 2, p. 59;  Cal. Const., art. IV, § 8, subd. (c)(3);  Gov.Code § 9600, subd. (b).)  The urgency rested in the need to protect the public from the “imminent threat” posed by repeat felony offenders through imposing longer prison sentences and greater punishment.  (Stats.1994, ch. 12, § 2, p. 59.)

On November 8, 1994 the voters followed suit by overwhelmingly 4 approving the initiative measure Proposition 184.   The initiative, which became effective November 9, 1994, added section 1170.12 to the Penal Code.5   Section 1170.12 contains almost identical provisions to the provisions earlier added by the Legislature to the Penal Code in section 667, subdivisions (b) through (i).   The people enacted the measure for the stated purpose of ensuring “longer prison sentences and greater punishment” for those who commit a felony and have previously been convicted of serious and/or violent felony offenses.  (Ballot Pamp., Preamble of Proposed Law (Nov. 8, 1994) p. 64.)

Statutory provisions of both the legislation and the initiative provide that if a defendant is convicted of a felony and it has been pled and proved the defendant has one prior violent and/or serious felony conviction as defined in section 667.5, subdivision (c) or section 1192.7, subdivision (c) respectively, the minimum term shall be twice the term otherwise provided for the current felony conviction.  (§§ 667, subds. (d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1).)   If the defendant has more than one prior serious and/or violent felony conviction, the minimum term imposed is the indeterminate term of life with a minimum sentence of the greater of:  (1) three times the term otherwise provided for the current felony or felonies, (2) 25 years, or (3) the term determined by the court pursuant to section 1170 plus enhancements.  (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)   Under both the legislation and the initiative the sentences imposed are in addition to any other enhancements or punishment provisions that may apply.   (§§ 667, subd. (e), 1170.12, subd. (c).)  Also, under both the legislation and the initiative, prior felony convictions include not only California adult convictions but certain juvenile convictions and certain convictions from other jurisdictions.  (§§ 667, subds. (d)(2), (d)(3), 1170.12, subds. (b)(2), (b)(3).)

Under both the legislation and the initiative the prosecutor is required to plead every prior felony conviction and is prohibited from using such convictions in plea bargaining.  (§§ 667, subds. (f)(1), (g), 1170.12 subds. (d)(1), (e).)   Moreover, the court in sentencing is prohibited from granting probation for the current offense or suspending sentence for a prior offense.  (§§ 667, subd. (c)(2), 1170.12, subd. (a)(2).)   The court must commit the defendant to state prison and imposition of consecutive sentences is required in no less than four subdivisions of both the legislation and the initiative.  (§§ 667, subds. (c)(4), (c)(6), (c)(7), (c)(8), (e)(2)(B), 1170.12, subds. (a)(4), (a)(6), (a)(7), (a)(8), (c)(2)(B).)

It is clear not only from the stated purpose of the legislation and the initiative but from an examination of the statutory provisions that the purpose of “three strikes” laws was to increase significantly the sentences of recidivist felony defendants and to curtail the prosecutor's and court's discretion in dealing with such repeat offenders.   A perceived failure of the criminal justice system to deal effectively with recidivism is evident from the initiative proponents' arguments which refer to the “judicial system's revolving door” (Ballot Pamp., argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36) and “soft-on-crime judges, politicians, defense lawyers and probation officers” (Ballot Pamp., rebuttal to the argument against Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 37).

II

Background of Criminal Proceedings

On June 3, 1994, after enactment of the “three strikes” legislation but before passage of Proposition 184, an information was filed charging Jesus Romero (Romero) with possession of a controlled substance (cocaine base) in violation of Health and Safety Code section 11350.   A prior conviction for the same crime was alleged within the meaning of Health and Safety Code section 11370, subdivision (a).   It was further alleged Romero was not eligible for probation as he had previously been convicted of five felonies,6 including a 1984 conviction for attempted burglary of an inhabited dwelling and a 1986 conviction for burglary of an inhabited dwelling.   Three prison priors pursuant to section 667.5 were also alleged.7  Finally, the information alleged a “Life Prior” within the meaning of sections 667, subdivisions (d) and (e) based on the 1984 conviction for attempted burglary and the 1986 conviction for burglary.

Romero demurred to the “life prior” allegation which was overruled.   At arraignment Romero pled not guilty and denied the prior conviction allegations.

The case was assigned to the Honorable William D. Mudd for trial.   An unreported chambers conference was held in which Judge Mudd and/or Romero or Romero's counsel apparently discussed a plea bargain.   The judge in open court then entered into a plea agreement with Romero whereby Romero entered a plea of guilty to the crime charged under People v. West (1970) 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 and admitted all of the alleged prior felony convictions and prison terms.   In return, the court promised to strike both of the prior serious felony convictions alleged pursuant to section 667, subdivisions (d) and (e) and to impose a sentence of no more than six years in prison.   The plea agreement between the court and Romero was made over the objection of the People and the People refused to sign the change of plea form.

Romero moved to dismiss and strike the life prior allegation.   The People opposed the motion.   At the sentencing hearing the People again opposed the plea bargain.   The court addressed its concerns about the “three strikes” legislation stating in part:

“․ I think this is a significant piece of Legislation that basically castrates a judge.   It takes away all of the discretion and it places it squarely in the hands of the D.A. and that's the reason it's a separation-of-powers argument in my opinion.

“Now, in terms of cruel and unusual punishment, ․ all I can do is fall back on my experience.   And my experience is in a—this is a two-rock case, .13 grams, and up until this year that case is worth sixteen months regardless of what the record of the person is․  Now it's a case where Mr. Romero is facing twenty-five years to life in a span of one year.”

The court then found as follows:

“That for the facts of this case, given the history of this defendant, with his last what we would call serious felony, which was a residential burglary in 1986, .13 grams of rock cocaine, a sentence for that offense of twenty-five years to life constitutes cruel and unusual punishment.

“There is clear in my mind a violation of the separation-of-powers argument for the reasons previously stated.   And for that reason, the court is striking the allegations in the interests of justice, being well aware of the prohibition in 1385 of the Penal Code.”

After striking the prior serious felony convictions, the court sentenced Romero to the upper term of three years plus one year for each of the prior prison terms for a total prison sentence of six years.

The People filed a notice of appeal and petitioned this court for a writ of mandate.   We issued an order to show cause why the relief requested in the petition for writ of mandate should not be granted and held oral argument.

DISCUSSION

Romero was charged and convicted on his plea of possession of a controlled substance in violation of Health and Safety Code section 11350, a felony.   Romero admitted all of the alleged prior felony convictions, including the 1984 attempted residential burglary conviction and the 1986 residential burglary conviction which were alleged as serious felonies within the meaning of section 667, subdivision (d).   Under the “three strikes” statutory scheme set forth in section 667, the court was required to sentence Romero to a minimum of the indeterminate term of 25 years to life.  (§ 667, subd. (e)(2)(A).)

 Romero, however, takes the position the separation of powers doctrine requires that the court be able to strike the “life prior” allegation in the furtherance of justice under section 1385, subdivision (a), and that the plea bargain was therefore legal.  (See Cal. Const., art. III, § 3.)   Romero further argues that even if the court could not strike the “life prior” allegation under section 667, the adoption of Proposition 184 restored the trial court's authority to strike the priors.   He additionally argues the punishment imposed by section 667, subdivision (e)(2) constitutes cruel and unusual punishment.8

The People, on the other hand, contend that the statutory scheme does not violate the separation of powers doctrine and that the court did not have discretion to strike “life prior” allegations under either the legislation or the later approved Proposition 184.   The People further contend the recidivist sentencing schemes provided under the “three strikes” legislation does not constitute cruel and unusual punishment under either the United States Constitution or the California Constitution.9  As discussed below, we find the People's arguments persuasive.

I

Separation of Power Doctrine

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.   The court's power includes the power to dismiss or strike an enhancement.  (People v. Thomas (1992) 4 Cal.4th 206, 209, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Section 1385, subdivision (b), however, provides that the 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.”   When the Legislature passed Assembly Bill No. 971, it placed its provisions in section 667.   Therefore, under the statutes the court appears to be prohibited from dismissing or striking the allegations of Romero's two prior convictions for serious felonies.

 Romero's position that the statutory scheme violates the separation of powers doctrine rests on section 667, subdivision (f).  Section 667, subdivision (f)(1) requires the “three strikes” legislation to be applied in every case in which a defendant has a defined prior felony conviction and further requires the prosecuting attorney to plead and prove each prior felony conviction except as provided in subdivision (f)(2).  Section 667, subdivision (f)(2) allows the prosecuting attorney to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to section 1385 or if there is insufficient evidence to prove the prior conviction.   Subdivision (f)(2) further provides the court may dismiss or strike a prior conviction allegation if it is satisfied “there is insufficient evidence to prove” the allegation.

Romero argues that if the prosecutor may move to strike in the furtherance of justice the obvious implication is that the court must have authority to strike a prior in the furtherance of justice but only upon the prosecutor's motion.10  Romero therefore reasons the trial court must have power to strike priors on its own, even over the objection of the prosecutor, because any construction of the statute which requires prosecutorial approval of the court's exercise of its power would be unconstitutional as violative of the separation of powers doctrine.

In support of his argument, Romero primarily relies upon People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 (Tenorio ).  (See also Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 [legislative scheme requiring consent of the prosecuting attorney before a magistrate could reduce a wobbler to a misdemeanor violates separation of powers doctrine];  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 [trial court's decision to “divert” to a drug treatment and rehabilitation program being subject to a prosecutorial veto violates separation of powers doctrine].)   In Tenorio the Court found a provision in Health and Safety Code section 11718 requiring a motion by the district attorney before a trial court could exercise its power to strike prior conviction allegations to violate the separation of powers doctrine.

The Court in Tenorio based its decision upon an extended history, dating back to at least 1850, of unfettered authority by the judiciary under section 1385 and its forerunner to dismiss a charged prior without the concurrence of the prosecutor.  (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The Court's decision rested upon both the fact the disputed statutory provision deprived the court of its traditional discretion in the exercise of sentencing decisions and the fact the executive branch's power was extended to interfere with the judicial process in an unprecedented fashion.  (See id. at pp. 94–95, 89 Cal.Rptr. 249, 473 P.2d 993.)   As stated by the court, “[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.”  (Id. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   As discussed below, we conclude Tenorio is not controlling because the effect of the statutory provision considered in Tenorio differed markedly from the effect of the provision considered here.   Moreover, the rationale of Tenorio has been significantly undercut by subsequent statutory and case law.

While the statutory provision considered in Tenorio appears similar to that considered here, a closer examination reveals the effects of the provisions are markedly different.   The “three strikes” legislation when examined as a whole does not grant power to a prosecutor but rather substantially curtails the prosecution's discretion in dealing with prior felony convictions.   Subsection (g) of section 667 categorically prohibits the use of prior felony convictions in plea bargaining.   Subsections (g) and (f)(1) require the prosecution to plead and prove all known prior felony convictions and subsection (g) further prohibits prosecutors from entering into any agreement to strike or seek the dismissal of prior felony conviction allegations.   The only discretion afforded the prosecution is that provided in subsection (f)(2) whereby it may move to dismiss or strike a prior felony conviction allegation if there is insufficient evidence to prove the allegation or in the furtherance of justice.

The severely limited prosecutorial discretion in charging and negotiating presented by the overall “three strikes” statutory scheme hardly equates to the “unreviewable” and “arbitrary” discretion vested in the prosecution which was criticized in Tenorio, supra, 3 Cal.3d at page 95, 89 Cal.Rptr. 249, 473 P.2d 993.   Rather, the statutory scheme represents tight legislative control of a prosecutor sharply curtailing the prosecution's previous discretion in carrying out its traditional charging function.

With respect to the court's power, the provision at issue in Tenorio took from the court a long-standing historical power to independently strike an allegation of a prior conviction and extended to the prosecutor a power to control the court's ability to exercise its power to strike.   At the time Tenorio was decided the court previously had the unfettered power to strike the prior convictions in the interest of justice.   Here, no such power existed.   Rather, the court's power to strike a prior serious felony conviction alleged pursuant to section 667 had already been taken from the court in 1986 when the Legislature enacted section 1385, subdivision (b).

Romero in reality challenges curtailment of the court's power under section 1385, subdivision (b) not section 667, subdivision (f)(2) which did not remove any existing power from the court.   The validity of section 1385, subdivision (b) against a separation of powers argument has been upheld in People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.   (See also People v. Williams (1987) 196 Cal.App.3d 1157, 1160, 242 Cal.Rptr. 421 [in discussing ex post facto effect of section 1385, subdivision (b) states the subdivision removed from the trial court all discretion to strike prior felony convictions rendering the imposition of the enhancement a “certainty”].)

Because the court was already prohibited from striking section 667 enhancements under subdivision (b) of section 1385, subdivision (f)(2) of section 667 has little if any impact on the court's existing power.   Moreover, the impact on the court's power is minimal whether subdivision (f)(2) is interpreted as limiting a court's power to strike to instances of insufficient evidence or as extending the power to allow the court to strike in the furtherance of justice upon a motion by the prosecution as urged by Romero.   Under either interpretation, the limitation to the court's power to strike exists in subdivision (b) of section 1385 not in subdivision (f)(2) of section 667.   In light of the limited or nonexistent impact of the “three strikes” legislation on the power of the court to strike prior convictions in the furtherance of justice, the statute does not violate the separation of powers doctrine.

Moreover, the rationale of Tenorio has been seriously undercut by subsequent developments in the law.   As previously discussed, at the time Tenorio was decided the trial court's discretion to dismiss prior conviction allegations in the interest of justice had not been limited by statute or case law.  (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   Such was no longer the case when the Legislature enacted the “three strikes” legislation.   Rather, the trial court's discretion in striking prior conviction enhancements had already been limited by enactment of section 1385, subdivision (b).   Limitations on the court's discretion under section 1385, subdivision (a) had also been enacted in analogous areas of firearm use and special circumstances.

In 1975 the Legislature enacted section 1203.06 which precluded the court from granting probation or suspending execution of a sentence for any person using a firearm in the commission of designated crimes.  (Stats.1975, ch. 1004, § 2.)   Although section 1203.6 did not expressly state judicial discretion to dismiss or strike under section 1385 was precluded, the Supreme Court in People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 held such to be the case.  (Id. at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328.)   As previously discussed, the Legislature in 1986 enacted section subdivision (b) of section 1385 precluding the trial court from striking a prior conviction of a serious felony for purposes of a section 667 enhancement.  (Stats.1986, ch. 85, § 2.)   The stated intent of the Legislature was to abrogate the holding of People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833 11 and to restrict the authority of the trial court to strike prior convictions of serious felonies when imposing an enhancement under section 667.  (Stats.1986, ch. 85, § 3.)   The validity of the statute was upheld in People v. Valencia, supra, 207 Cal.App.3d at page 1045, 255 Cal.Rptr. 180.   In 1989 the Legislature amended section 1170.1, subdivision (h), which allows the court to strike certain listed enhancements if warranted by mitigating circumstances, to delete reference to section 12022.5 firearm use enhancements.  (People v. Thomas (1992) 4 Cal.4th 206, 208, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Despite the fact the Legislature in amending section 1170.1, subdivision (h) did not refer to the court's power to strike under section 1385, the Supreme Court held a trial court no longer had discretion to strike a section 12022.5 firearm enhancement under section 1385 as well.  (Thomas, supra, at pp. 209–214, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Finally, in 1990 the people through the initiative process and as part of an overall package to reform the criminal justice system to protect crime victims enacted section 1385.1 which prohibits a trial court from striking or dismissing any section 190.2 special circumstances pursuant to section 1385.12

The foregoing demonstrates that contrary to the situation that existed at the time the Supreme Court decided Tenorio, the Legislature and the people through the initiative process have in recent years repeatedly limited the trial court's discretion under section 1385 and such limitations have been upheld.   Under current law, a trial court retains its power to strike in the furtherance of justice under subdivision (a) of section 1385 unless there is some other provision of law divesting the court of that power.  (See People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   However, where the Legislature or the people have acted to evidence clearly a “contrary intent,” the trial court's discretion will be abrogated.  (See People v. Thomas, supra, 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.)

 To determine legislative intent, we begin with well-established rules of statutory construction:

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]  In order to determine this intent, we begin by examining the language of the statute.  [Citations.]  But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’  [Citations.]  Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’   [Citations.]  Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’   [Citation.]”  (People v. Pieters (1991) 52 Cal.3d 894, 898–899, 276 Cal.Rptr. 918, 802 P.2d 420.)

The “three strikes” legislation does not specifically refer to the court's authority to strike in the interest of justice pursuant to section 1385, subdivision (a).   Nor does the legislation refer to the limitation on the court's power contained in section 1385, subdivision (b).   The legislative intent to preclude the court from exercising its power to dismiss prior felony convictions under section 1385, subdivision (a), however, need not be specifically stated.  (People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

The stated intent of the Legislature in enacting the legislation was to ensure “longer prison sentences and greater punishment” for recidivist felony defendants who had previously been convicted of serious and/or violent crimes.  (§ 667, subd. (b).)  Moreover, section 667, subdivision (c)(2) provides that “[n]otwithstanding any other law,” the court “shall not” grant probation for the current offense or suspend “execution or imposition of the sentence ․ for any prior offense.”   The authorized procedure for not imposing sentence on a prior conviction at the time of sentencing is to strike the prior.  (People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502.)   The second clause of section 667, subdivision (c)(2) therefore implies the Legislature did not intend the trial court to have the ability to strike priors at the time of sentencing.

Additionally, section 667, subdivision (f)(2) specifically grants power to the trial court to dismiss on the basis of insufficient evidence.   A specific grant of power implies that no other power passes.  (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196, 132 Cal.Rptr. 377, 553 P.2d 537.)   Further, in subdivision (f)(1) the Legislature specifically granted power to the prosecuting attorney to move to dismiss or strike in the furtherance of justice pursuant to section 1385 and could have done the same with respect to the court's power if that was its intent.   Instead, the Legislature placed the “three strikes” legislation in section 667 thereby indicating it intended section 1385, subdivision (b) to apply to abrogate the court's power to strike in the furtherance of justice under section 1385, subdivision (a).   It is therefore readily apparent from an examination of the statutory provisions and consideration of the overall intent of the law that the Legislature did not intend a court, at least on its own motion, to be able to dismiss “life prior” allegations in the furtherance of justice.

II

Passage of Proposition 184

 When a penal statute is amended so as to lessen punishment, the provision is applied retroactively to benefit the defendant in pending cases.  (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434.)   Romero argues that even if section 1385, subdivision (b) applied under the “three strikes” legislation to bar the trial court from striking the prior serious felony conviction allegations, passage of Proposition 184, placing the statutory provisions in section 1170.12 rather than section 667, removed the bar.   He therefore reasons the trial court could now strike the prior allegations under section 1385, subdivision (a) which must be applied to his benefit.   We disagree, concluding that despite the nonapplicability of section 1385, subdivision (b) to section 1170.12, it is clear the voters in passing the “three strikes” initiative intended to preclude a trial court, at least on its own motion, from striking a “life-prior” allegation pursuant to section 1385, subdivision (a).

 Whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration in construing statutory provisions.  (In re Lance W. (1985) 37 Cal.3d 873, 889, 210 Cal.Rptr. 631, 694 P.2d 744.)   In determining the intent of the electorate in passing Proposition 184, we therefore apply the rules of statutory construction previously stated.   Moreover, if the language of a proposition is ambiguous, we consider “indicia” of the voters' intent other than the language of the provision including the analysis and arguments contained in the official ballot pamphlet.  (Legislature v. Eu (1991) 54 Cal.3d 492, 504, 286 Cal.Rptr. 283, 816 P.2d 1309.)

 The question presented is whether the voters by “placing” the statutory provisions in section 1170.12 as opposed to section 667 intended to “restore” a court's power to strike “life priors” on its own motion under section 1385, subdivision (a).   A review of the statutory provisions and the ballot pamphlet presents evidence overwhelmingly to the contrary.

As with the “three strikes” legislation, the statute enacted by the “three strikes” initiative contains no specific reference to a trial court's power to strike in the furtherance of justice pursuant to section 1385.   The initiative statute however contains an essentially identical provision to section 667, subdivision (c)(2) enacted by the Legislature which provides that “[n]otwithstanding any other provision of law,” the court “shall not” grant probation for the current offense or suspend “execution or imposition of the sentence ․ for any prior offense.”  (§ 1170.12, subd. (a)(2).)   As previously discussed with respect to section 667, the second clause of section 1170.12, subdivision (a)(2) indicates the trial court was not intended to have discretion to strike “life priors.”   Additionally, while the “mere” use of mandatory language in a statute does not indicate section 1385 is inapplicable (see People v. Williams, supra, 30 Cal.3d at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029), the repeated use of mandatory language in section 1170.12, subdivision (a)(2) provides some indicia of an intent by the voters that the court not prevent the imposition of “life priors” through the use of a general power under section 1385, subdivision (a).

The statute enacted by Proposition 184 also contains an identical provision to section 667, subdivision (f)(2).  (§ 1170.12, subd. (d)(2).)   The specific grant of power to the trial court to dismiss on the basis of insufficient evidence contained in section 1170.12, subdivision (d)(2) implies that no other power passes.  (See Wildlife Alive v. Chickering, supra, 18 Cal.3d at p. 196, 132 Cal.Rptr. 377, 553 P.2d 537.)   Further, the fact the voters, in the same subdivision specifically granted power to the prosecuting attorney to move to dismiss or strike in the furtherance of justice pursuant to section 1385 while not mentioning the court except as to a power to dismiss for insufficient evidence, indicates an intent not to extend a similar power to the court.

Nowhere in the ballot pamphlet is there any reference to the court being able to strike or dismiss priors other than a statement in the argument in favor of the proposition that prosecutors “with court approval” have discretion “to dismiss a prior strike in the interest of justice.”  (Ballot Pamp., argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36.)

Additionally, the legislative analysis of the measure on no less than eight occasions stated the provisions of the initiative measure were “identical to” or “reaffirmed” the law that was enacted by the Legislature.   (Ballot Pamp., Analysis of Prop. 184 by Legislative Analyst, Gen.Elec. (Nov. 8, 1994) pp. 32–34.)   The analysis further stated adoption of the measure would have “no direct impact on existing law.”  (Ballot Pamp., supra, at p. 33.)   The argument of the opponents to the measure stated in bold capital letters that “PROPOSITION 184 DOES NOT CHANGE THE LAW.”  (Ballot Pamp. rebuttal to the argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36.)

The arguments of the proponents of the proposition on two occasions expressed displeasure with the “judicial system's revolving door.”  (Ballot Pamp., Prop. 184 with arguments to voters, Gen.Elec. (Nov. 8, 1994) pp. 36–37.)   The proponents' argument additionally claimed the measure was placed on the ballot because of “soft-on-crime judges ․” who “spend all of their time looking for loopholes” to reduce punishment.  (Ballot Pamp., rebuttal to the argument against Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 37.)   The argument in favor of the proposition further stated:  “The threat of our initiative forced Sacramento politicians to pass 3 Strikes.   Now, they're trying to weaken it.   Our vote for Proposition 184 will strengthen the law and tell politicians, ‘hands off 3 Strikes.”  (Ballot Pamp., argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36.)

The analysis and the arguments contained in the ballot pamphlet make it abundantly clear the measure was presented to the voters as one that would in no manner weaken the “three strikes” law as passed by the Legislature.   Rather, it was presented as a measure that would have no impact or one that might possibly “strengthen” the existing law.   Moreover, a stated need for the law according to the pamphlet was to limit not extend the powers that were being exercised by the judiciary to reduce sentences.   From reading the ballot pamphlet including the proposed legislation, a voter would have absolutely no indication passage of the proposition would result in an increase in the discretion afforded the judiciary to dismiss prior conviction allegations.

Moreover, the voters were informed the purpose of the measure was to “ensure longer prison sentences and greater punishment.” 13  (Ballot Pamp., Preamble of Proposed Law (Nov. 8, 1994) p. 64.)   The “three strikes” initiative includes a whole package of provisions aimed at enhancing criminal liability for recidivist felony defendants with prior convictions for serious and/or violent felonies.   As a whole, the initiative measure is a mandatory charging and sentencing scheme which precludes both the prosecution and the trial court from unilaterally ignoring, striking or dismissing qualifying serious or violent priors.   Viewing the statutory scheme as a whole and the materials presented to the electorate, we find it highly unlikely the voters by “placing” the legislative provisions in section 1170.12 intended to reinstate the broad judicial authority provided to the trial court under section 1385, subdivision (a) to strike conviction priors on its own motion.   Rather, the clear intent of the electorate was to limit the power of the court and maintain the same statutory scheme as was put into place by the Legislature.

III

Cruel or Unusual Punishment

Relying on In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697,14 Romero contends imposition of a sentence of 25 years to life for “minor” nonviolent property and controlled substance violations is “grossly disproportionate and shocks the conscience” thereby violating the constitutional prohibition against cruel or unusual punishment.   Romero does not appear to rely upon the Federal prohibition against cruel and unusual punishment contained in the Eighth Amendment as applied to the states through the Fourteenth Amendment 15 but rather appears to rely exclusively upon the prohibition against cruel or unusual punishment contained in California Constitution article I, section 17.16

 The power to define crimes and prescribe punishment is a legislative function.   The judiciary may not interfere in this process unless the statute prescribes a penalty so severe in relation to the crime as to violate the constitutional prohibition against cruel or unusual punishment.  (People v. Dillon, supra, 34 Cal.3d at pp. 477–478, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch, supra, 8 Cal.3d at pp. 423–424, 105 Cal.Rptr. 217, 503 P.2d 921.)   The basic test is whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921, fn. omitted.)   Successful challenges to proportionality are an “exquisite rarity.”  (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 2 Cal.Rptr.2d 714.)

In re Lynch applied a three pronged approach to determine whether a particular punishment is disproportionate to the offense for which it is imposed.  (In re Lynch, supra, 8 Cal.3d at pp. 429–438, 105 Cal.Rptr. 217, 503 P.2d 921.)   Under the first prong, the court examines the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.”  (Id. at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921.)   Second, the court compares the challenged punishment with punishments prescribed for more serious crimes in the same jurisdiction.  (Id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921.)   Finally, the challenged punishment is compared with punishments for the same offense in other jurisdictions.  (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)

The Supreme Court in People v. Dillon refined the first prong of the In re Lynch analysis.   As to evaluating the nature of the offense, courts should examine “not only the offense in the abstract” but also “ ‘the facts of the crime in question.’ ”  (People v. Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390, 668 P.2d 697.)   Courts should consider “the totality of the circumstances” including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of the defendant's acts.  (Ibid.)  With respect to the nature of the offender, a court should ask whether “the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.”  (Ibid.)

 The analysis developed in In re Lynch and People v. Dillon merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case.  (In re DeBeque (1989) 212 Cal.App.3d 241, 249, 260 Cal.Rptr. 441.)   Determinations whether a punishment is cruel or unusual may be made based on the first prong alone.  (See, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482–488, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Weddle, supra, 1 Cal.App.4th at pp. 1198–1200, 2 Cal.Rptr.2d 714;  People v. Young (1992) 11 Cal.App.4th 1299, 1308–1311, 15 Cal.Rptr.2d 30.)   The defendant has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe.  (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254–255, 260 Cal.Rptr. 441.)

Nature of the Offense and/or Offender

 Romero was convicted of possession of cocaine, clearly a felony under California law.   The trial court, in finding the imposition of the sentence required under the “three strikes” legislation would constitute cruel and unusual punishment, mistakenly focused on the current offense and the small amount of cocaine involved.   Romero, however, is not subject to a life sentence under the “three strikes” legislation merely on the basis of his current offense but on the basis of his recidivist behavior.

Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.  (See People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)   In discussing recidivist statutes the Supreme Court of the United States has stated:

“The purpose of a recidivist statute ․ [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.   This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.   Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  (Rummel v. Estelle, supra, 445 U.S. at pp. 284–285, 100 S.Ct. at pp. 1144–1145.)

Romero is subjected to a life sentence under the “three strikes” legislation based on his current felony and his previous convictions for residential burglary and attempted residential burglary.   Romero attempts to characterize his offenses as “minor non-violent property and controlled substances offenses.”   Such characterization is misleading.   Burglary of an inhabited dwelling, while not necessarily violent in itself, is a crime that has a tremendous potential for injury or even death.   There is little question that in our society many, if not most, individuals have a great need for security in their residences.   Individuals may be expected to respond defensively to any violation of their residential space or perceived threat to loved ones.   Because of the danger involved, burglary of an inhabited dwelling is considered so dangerous that it is included within those crimes designated as “serious” under section 1192.7.  (See People v. Jackson (1985) 37 Cal.3d 826, 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   Burglary of an inhabited dwelling is certainly not a “minor” violation.   Nor considering the danger involved, is it “merely” a property crime.

Turning to the nature of the offender, the probation report shows Romero, who is 32 years old and addicted to heroin and cocaine, has had a continuous criminal history for at least 15 years.   On his 18th birthday Romero was convicted of second degree burglary.   Two months later he was convicted of being under the influence of a controlled substance.   Two years later he was convicted of grand theft as a misdemeanor and within one year after that he was convicted, on three separate occasions, of being under the influence of a controlled substance.

A 1983 arrest for residential burglary resulted in a plea to receiving stolen property, a lesser included offense.   In 1984 Romero was convicted of attempted residential burglary.   A 1985 arrest for auto theft resulted in a guilty plea to giving a false name to an officer.   Then in 1986, Romero was convicted of residential burglary and sentenced to state prison.   Less than 10 months after his release from prison, Romero was arrested for possession of a controlled substance and resentenced to prison.   Shortly after his release, Romero was in 1993 again convicted of possession of a controlled substance and resentenced to prison.   Within one month of his release on parole, Romero was arrested for the current offense.

For at least the last 15 years, Romero has continually preyed upon society.   He has spent much of his adult life in county jail or prison with no apparent impact upon his behavior upon release.   He is an addict who finances his habit by theft and burglary.   He dropped out of school and has never maintained steady employment.   Considering the nature of the offenses for which Romero faces conviction and the nature of his criminal history, application of the “three strikes” law can hardly be considered to offend fundamental notions of human dignity or to shock the conscience.

Punishment for More Serious Crimes in California

 Romero argues that the punishment for first degree murder is imprisonment for 25 years to life.   With the difference in conduct credits allowed under the “three strikes” legislation, Romero contends a first degree murderer actually has an earlier possible parole date than he does for possessing 0.13 grams of cocaine.   Romero misses the point that he is subject to 25 years to life imprisonment not because he possessed 0.13 grams of cocaine but because of his recidivist behavior.   Imposition of greatly enhanced sentences for recidivists in California has long been upheld.  (See In re Rosencrantz (1928) 205 Cal. 534, 535–536, 539–540, 271 P. 902 [upholding imposition of sentence of life without possibility of parole for defendant convicted of fraudulently uttering a check without sufficient funds after three prior felony convictions];  People v. Weaver (1984) 161 Cal.App.3d 119, 125–126, 207 Cal.Rptr. 419 [discussing California's long history of upholding habitual offender statutes].)   Moreover, a comparable first degree murderer who had previously been convicted of first or second degree murder would be subject to the greater penalties of life imprisonment without parole or the death penalty under section 190.2, subdivision (a)(2).

Punishment for Similar Offenses in Other Jurisdictions

 Romero presents no evidence with respect to sentences imposed for similar offenses in other jurisdictions.   However, a review of statutes from other states demonstrates punishment for habitual criminals similar to that imposed by the “three strikes” legislation is not uncommon.   Nor does a statutory scheme which results in life imprisonment for a nonviolent criminal upon a third felony conviction violate the federal prohibition against cruel and unusual punishment.  (See Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133;  cf. Bordenkircher v. Hayes (1978) 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 [imposition of life imprisonment under recidivist statute for uttering a forged instrument in the amount of $88.30 upheld against vindictive prosecution claim].)

Statutes in at least 40 states 17 provide for enhanced sentences for habitual offenders.   In Alabama a criminal defendant with two prior felony convictions who is later convicted of a third felony must be imprisoned for from 10 years to life depending upon the class of the current felony.   (Ala.Code, §§ 13A–5–6;  13A–5–9.)   If the defendant has had three prior felony convictions, the mandatory sentence is increased to a minimum of 15 years to a maximum of life imprisonment without parole depending upon the class of the current felony.  (Ala.Code, § 13A–5–9.)   Delaware requires imposition of a life sentence on a defendant who is convicted of a named felony including burglary in the first and second degree, manslaughter, assault in the first degree and certain drug manufacturing or trafficking offenses if the defendant has two prior convictions of the named felonies.  (Del.Code Ann., tit. 11, § 4214.)

Upon conviction of a third felony, Idaho provides a defendant shall be sentenced to from five years to life (Idaho Code, § 19–2514), while in Mississippi a third felony conviction, if one of the convictions involves a crime of violence, results in life imprisonment without parole (Miss.Code Ann. § 99–19–83).   Under Illinois law a defendant three times convicted of a Class X felony, for which the sentence is normally from six to thirty years, shall be sentenced to life imprisonment.  (Ill.Ann.Stat., ch. 720, § 33B–1 and ch. 730, § 5/5–8–1.)   In Indiana a defendant with two prior specified felony convictions may be sentenced to life imprisonment without parole upon conviction of a third specified felony.  (Ind.Code, § 35–50–2–8.5.)   The specified felonies include murder, battery with a deadly weapon, robbery or burglary with a deadly weapon or resulting in serious bodily injury, and dealing in schedule I, II, or III controlled substances with an aggregate weight of three grams or more.  (Ind.Code, § 35–50–2–2.)   Nebraska provides that a defendant who has twice been convicted of any crime resulting in a prison sentence of not less than one year and later is convicted of any felony shall be imprisoned for from 10 to 60 years (Neb.Rev.Stat., § 29–2221), while a defendant in Rhode Island who has previously been convicted of any two felonies shall serve 25 years in addition to the sentence normally imposed for any third conviction punishable by imprisonment of more than one year (R.I.Gen.Laws, § 12–19–21).

In South Carolina a defendant with three convictions for specified violent crimes, including those for first and second degree burglary, must be sentenced to life imprisonment without parole (S.C.Code Ann. §§ 17–25–45, 16–1–60), and in Vermont a person with any three felony convictions may be sentenced to life imprisonment upon conviction of a fourth felony (Vt.Stat.Ann., tit. 13, § 11).   Criminal defendants in both Washington and West Virginia convicted of any felony who have previously been convicted of two felonies shall be imprisoned for life.  (Wash.Rev.Code Ann., § 9.92.090;  W.Va.Code, § 61–11–18.)   Finally, in Wyoming if a defendant with three or more previous felony convictions is convicted of a violent felony, the defendant is imprisoned for life.  (Wyo.Stat., § 6–10–201.)

While comparative analysis among states is difficult, it is clear many of the statutory schemes presented provide for life imprisonment and at least four states (Alabama, Mississippi, Indiana and South Carolina) provide for life imprisonment without possibility of parole.   Both Washington and West Virginia upon conviction of a third felony require life imprisonment without regard to the nature of the felonies.   California's scheme, while possibly more severe in some respects than the schemes of other jurisdictions, appears to be less severe in other respects.   Overall, California's “three strikes” scheme, rather than being out of the ordinary, appears to be part of a nationwide pattern of recidivist statutes calling for substantially increased sentences for habitual offenders.

Ultimately, the test whether a specific punishment is cruel or unusual is whether it is “ ‘out of all proportion to the offense’ ․ so as to shock the conscience and offend fundamental notions of human dignity.”  (in RE Debeque, supra, 212 caL.app.3d at p. 249, 260 caL.rptr. 441, quoting Robinson v. California (1962) 370 U.S. 660, 676, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758 and citing In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   A review of the nationwide habitual offender statutes provides compelling evidence imposition of a severe sentence including life under the circumstances presented here would not shock the conscience or be out of proportion to the offense committed.   Moreover, the initiative process resulting in the passage of Proposition 184 provides us with a unique opportunity to consider directly the opinion of a large portion of the California populace with respect to the punishments provided under the “three strikes” provisions.

The legislative analysis for Proposition 184 included a table informing the voters that a defendant with two prior serious or violent convictions whose current crime is neither serious nor violent would receive a life sentence of at least 25 years, the same sentence that would be imposed on a defendant whose current offense is a violent or serious felony.  (Ballot Pamp., Analysis of Prop. 184 by Legislative Analyst, Gen.Elec. (Nov. 8, 1994) p. 34.)   Three of the five examples of prior serious or violent offenses used in the table were burglary of a residence.  (Ballot Pamp., supra, at p. 34.)   The argument against the proposition stressed that the measure applied even though the third strike was neither a serious nor a violent felony and claimed that three out of four people convicted under the proposition would be imprisoned for nonviolent crimes.  (Ballot Pamp., rebuttal to the argument in favor of Prop. 184 as presented to the voters, Gen.Elec. (Nov. 8, 1994) p. 36;  Ballot Pamp., supra, argument against Prop. 184, p. 37.)   Nonetheless, the voters approved the proposition by a margin of 72 percent to 28 percent.  (Statement of Vote, Gen.Elec. (Nov. 8, 1994) p. ix.)

It may be inferred from the results of the election that well over two-thirds of California voters do not consider it cruel or unusual punishment for a recidivist offender convicted of a nonviolent, nonserious felony with prior convictions for violent or serious felonies, including burglary of an inhabited dwelling, to receive a sentence of 25 years to life.   While it is conceivable that a sentence violative of the cruel or unusual punishment prohibition might be approved by the electorate, such is highly unlikely and unquestionably did not occur here.   Neither the statutory scheme nor the sentence that would be imposed upon Romero under that scheme is such that it shocks the conscience or violates notions of human dignity.   Rather, the enactment of the statute and its appropriate application to Romero results from a need to deter offenders who repeatedly commit crimes serious enough to be classified as felonies and to segregate those offenders from the rest of society for an extended period of time.

We therefore conclude the sentence to be imposed upon Romero pursuant to the “three strikes” legislation does not constitute cruel or unusual punishment.

DISPOSITION

Let a writ of mandate issue directing the trial court to vacate the sentence imposed and to reinstate the “life-prior” allegation.18

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The Legislature amended section 667 to consolidate the existing section 667 into section 667, subdivisions (a) and (j) and added subdivisions (b) through (i).   In pertinent part the amended section provides:“(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.“(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:“(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.“(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.“(3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.“(4) There shall not be a commitment to any other facility other than the state prison.   Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.“(5) 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.“(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).“(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.“(8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.“(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as:“(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.   The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.   None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:“(A) The suspension of imposition of judgment or sentence.“(B) The stay of execution of sentence.“(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.“(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.“(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.“(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:“(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.“(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony.“(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.“(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.“(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:“(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.“(2)(A) If a defendant has two or more prior 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:“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.“(ii) Imprisonment in the state prison for 25 years.“(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.“(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.“(f)(1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d).   The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).“(2) 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.“(g) 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).”

3.   The bill passed the Assembly on a vote of 63 to 9 and passed the Senate on a vote of 29 to 7.  (Assem.Bill No. 971 approved by Assembly, Jan. 31, 1994, approved by Senate, March 3, 1994, Assem.Recess Hist. (1993–1994 Reg.Sess.) Oct. 6, 1994, p. 260.)

4.   Proposition 184 was approved by 71.84 percent of the electorate.  (Statement of Vote, Gen.Elec. (Nov. 8, 1994) p. ix.)

5.   Section 1170.12 provides:“(a) Notwithstanding any other provision of 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 (b), the court shall adhere to each of the following:“(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.“(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.“(3) The length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.“(4) There shall not be a commitment to any other facility other than the state prison.   Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.“(5) 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.“(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.“(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.“(8) Any sentence imposed pursuant to this section will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.“(b) Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as:“(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.   The determination of whether a prior conviction is a prior felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.   None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of this section:“(A) The suspension of imposition of judgment or sentence.“(B) The stay of execution of sentence.“(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.“(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.“(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.“(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:“(A) The juvenile was sixteen years of age or older at the time he or she committed the prior offense, and“(B) The prior offense is“(i) listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, or“(ii) listed in this subdivision as a felony, and“(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and“(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.“(c) For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:“(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.“(2)(A) If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), 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“(i) three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or“(ii) twenty-five years or“(iii) the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.“(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.“(d)(1) Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.   The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).“(2) 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.“(e) 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 (d).”

6.   The five felony convictions alleged were burglary in the second degree (§ 459) on June 25, 1980;  attempted burglary in the first degree (§§ 664, 459) on November 16, 1984;  burglary in the first degree (§ 459) on September 2, 1986;  possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)) on April 6, 1992;  and possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)) on June 8, 1993.

7.   The prison priors alleged were for the 1992 and 1993 possession convictions and the 1986 first degree burglary conviction.

8.   Romero additionally argues that the petition for writ of mandate should be denied as there is an adequate remedy by appeal.   Romero, however, admits the petition raises legal issues of statewide importance in need of immediate resolution.   We conclude immediate writ review is warranted because the petition raises issues with significant legal impact on a vast number of pending criminal prosecutions.   Should writ review be denied, a multiplicity of appeals raising identical issues would result.   (See Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405.)

9.   The People additionally argue the plea bargain between the trial court and Romero was illegal and made upon an inadequate record.   As discussed in the body of our opinion, we conclude on other grounds the court had no authority to strike the “life prior” allegation.   We therefore do not reach the questions raised regarding the adequacy of the record or the court's general ability to enter into plea bargains over the People's objection except to note that under section 667, subdivision (g), prior felony convictions shall not be used in plea bargaining as defined in section 1192.7.   Under section 1192.7 “plea bargaining” is defined as negotiations between a criminal defendant or his or her counsel and a prosecutor or judge.  (§ 1192.7, subd. (b).)

10.   We do not reach the question whether the court under subdivision (f)(2) of section 667 may dismiss a prior serious felony conviction allegation in the furtherance of justice upon a prosecution motion or whether the court is limited to dismissing an allegation for insufficient evidence only.   The interpretation of the subdivision is necessary to our deliberation only to the extent it might impact upon our decision whether the separation of powers doctrine has been violated.   As discussed in the body of the opinion, the separation of powers doctrine is not violated under either construction.   An interpretation of the court's power is therefore unnecessary to our decision.

11.   In 1982 the people through the initiative process enacted section 667 which imposed five-year enhancements for certain previous serious felony convictions.  (See People v. Fritz, supra, 40 Cal.3d at p. 233, 219 Cal.Rptr. 460, 707 P.2d 833 [Lucas, J. dissenting].)   The Supreme Court in People v. Fritz had held the trial court retained authority to strike the 667 enhancements in the interest of justice under section 1385.

12.   Our discussion of limitations in the trial court's discretion under section 1385 that have developed subsequent to the Supreme Court addressing the issue in Tenorio in 1970 is not intended to be a comprehensive listing of all such limitations.

13.   The preamble to the initiative states:“It is the intent of the People of the State of California in enacting this measure 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.”  (Ballot Pamp., Preamble of Proposed Law (Nov. 8, 1994) p. 64.)

14.   In re Lynch held an indeterminate sentence of one year to life for recidivists who commit indecent exposure under section 314 was void as cruel or unusual punishment.  (In re Lynch, supra, 8 Cal.3d at p. 439, 105 Cal.Rptr. 217, 503 P.2d 921.)   In People v. Dillon the Court reaffirmed In re Lynch and concluded that under the facts of the case, the life imprisonment of a 17–year–old defendant for first degree murder based on a felony-murder theory violated California's constitutional prohibition against cruel or unusual punishment.  (People v. Dillon, supra, 34 Cal.3d at pp. 450–452, 477, 482–483, 489, 194 Cal.Rptr. 390, 668 P.2d 697.)

15.   Reliance upon the federal prohibition would be unsuccessful.   The United States Supreme Court last addressed the question whether the Eighth Amendment includes a proportionality guarantee in noncapital cases in Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836.   While Harmelin did not contain a majority opinion with respect to the issue, two Justices concluded the Eighth Amendment contains no proportionality guarantee (id. at p. 965, 111 S.Ct. at p. 2686 [opn. of Scalia, J.] ) and three other justices concluded the amendment forbids only those sentences which are “grossly disproportionate” to the crime (id. at p. 1001, 111 S.Ct. at p. 2705 [opinion of Kennedy, J.] ).   Even those Justices recognizing a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to particular sentences are “exceedingly rare” because of the “relative lack of objective standards concerning terms of imprisonment.”  (Ibid.)The United States Supreme Court earlier had addressed the constitutionality of a Texas recidivist statute requiring life imprisonment upon conviction of a third felony in Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382.   Over the course of nine years Rummel had been convicted of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36 and obtaining $120.75 by false pretenses.  (Id. at pp. 265–266, 100 S.Ct. at pp. 1134–1135.)   In response to Rummel's argument life imprisonment was “grossly disproportionate” to the three felonies committed, the Court concluded the mandatory life sentence did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments.  (Id. at p. 285, 100 S.Ct. at p. 1145.)   Comparing the magnitude of Romero's current offense and prior felony convictions to the magnitude of the felonies at issue in Rummel, a claim that Romero's imprisonment for 25 years to life would constitute cruel and unusual punishment within the meaning of the Eighth Amendment must necessarily fail.

16.   Romero does not appear to challenge the constitutionality of the “three strikes” statutory scheme in general but only as it applies to him.   As discussed later in the body of this opinion, habitual criminal statutes substantially increasing the severity of punishment for those who have demonstrated a propensity to repeatedly commit criminal offenses serious enough to be punished as felonies are legion and long-established.   Nothing in the “three strikes” statutory scheme indicates that a general challenge would be successful.

17.   Recidivist statutes are currently in effect in at least Alabama (Ala.Code, § 13A–5–9), Arizona (Ariz.Rev.Stat.Ann., § 13–604), Arkansas (Ark.Code Ann., § 5–4–501), Colorado (Colo.Rev.Stat., § 16–13–101), Connecticut (Conn.Gen.Stat.Ann., § 53a–40), Delaware (Del.Code Ann., tit. 11, § 4214), Florida (Fla.Stat.Ann., § 775.084), Georgia (Ga.Code Ann., § 17–10–7), Hawaii (Hawaii Rev.Stat., § 706–606.5), Idaho (Idaho Code, § 19–2514), Illinois (Ill.Ann.Stat., ch. 720, § 33B–1), Indiana (Ind.Code, § 35–50–2–8.5), Kansas (Kan.Stat.Ann., § 21–4504), Kentucky (Ky.Rev.Stat.Ann., § 532.080), Louisiana (La.Rev.Stat.Ann., § 15:529.1), Maryland (Md.Ann.Code, art. 27, § 643B), Michigan (Mich.Comp.Laws Ann., § 769.12), Mississippi (Miss.Code Ann., § 99–19–83), Missouri (Mo.Ann.Stat., § 558.016), Montana (Mont.Code Ann., § 46–18–501), Nebraska (Neb.Rev.Stat., § 29–2221), Nevada (Nev.Rev.Stat., § 207.010), New Hampshire (N.H.Stat.Ann., § 651:6), New Jersey (N.J.Stat.Ann., §§ 2C:44–3, 2C:43–7), New York (N.Y.Penal Law, § 70.08), North Carolina (N.C.Gen.Stat., §§ 14–7.1, 14–7.6), North Dakota (N.D.Cent.Code, § 12.1–32–09), Oklahoma (Okla.Stat., tit. 21, § 51), Oregon (Ore.Rev.Stat., § 161.725), Rhode Island (R.I.Gen.Laws, § 12–19–21), South Carolina (S.C.Code Ann., § 17–25–45), South Dakota (S.D.Codified Laws, § 22–7–8), Tennessee (Tenn.Code Ann., §§ 40–35–106, 40–35–107, 40–35–108), Texas (Tex.Penal Code Ann., § 12.42), Utah (Utah Code, § 76–8–1001), Vermont (Vt.Stat.Ann., tit. 13, § 11), Virginia (Va.Code, § 19.2–297.1), Washington (Wash.Rev.Code Ann., § 9.92.090), West Virginia (W.Va.Code, § 61–11–18) and Wyoming (Wyo.Stat., § 6–10–201).

18.   The People also request that we direct the court to resentence Romero in accordance with the “three strikes” legislation.   We decline to do so because the plea bargain between Romero and the court was based upon the understanding that should a Court of Appeal later rule adverse to Romero, the case would be returned for trial.   In light of that understanding, the matter will be returned to the trial court where Romero will have an opportunity to withdraw his guilty plea.

HUFFMAN, Associate Justice.

WORK, Acting P.J., and BENKE, J., concur.