PEOPLE v. SUPERIOR COURT

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

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

Randall Eugene PIPKIN, Real Party in Interest. The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Frank RODRIGUEZ et al., Real Parties in Interest.

Nos. B091707, B092243.

Decided: September 15, 1995

Brentford J. Ferreira, Deputy District Attorney, for Petitioner. Michael P. Judge, Los Angeles Public Defender, Albert J. Menaster, Tracy Mooney, Alex Ricciardulli, Deputy Public Defenders for real Parties in Interest. No appearance for Respondent.

I. INTRODUCTION

The People of the State of California have filed petitions for writs of mandate seeking to set aside orders striking prior serious conviction findings in two different cases of defendants, Frank Rodriguez and Randall Eugene Pipkin.   Because the prior conviction allegations had been “pled and proved” (Pen.Code,1§ 667, subd. (c)), the respondent courts did not have the authority, given the holding of People v. Tanner (1979) 24 Cal.3d 514, 518–522, 156 Cal.Rptr. 450, 596 P.2d 328, to strike the prior serious felony convictions for purposes of granting probation to defendants.   We have consolidated these cases.   We issue our writs of mandate as to both defendants directing the orders striking the prior felony convictions that had been “pled and proved” (§ 667, subd. (c)) be set aside and permitting them to withdraw their no contest pleas.

II. PROCEDURAL BACKGROUND

A. Mr. Rodriguez's plea and grant of probation

Mr. Rodriguez was charged in count 1 of the amended information with possession of cocaine in violation of Health and Safety Code section 11350.   In count 2, he was charged with being under the influence of cocaine, a misdemeanor, in violation of Health and Safety Code section 11550.   It was further alleged as to the felony charge that he had previously been convicted of robbery in violation of Penal Code section 211.   According to the probation report, Mr. Rodriguez was riding in a car with his wife, Maria Rodriguez.   Mr. Rodriguez was a parolee and his wife was driving the automobile.   When it was stopped by the police, Mr. Rodriguez was asked his name.   Mr. Rodriguez lied and said his name was Frank Mendoza.2  Also, defendant lied and said his wife was his girlfriend.   Mr. Rodriguez was under the influence of cocaine which would constitute a violation of his parole.   He reached for his wife's purse.   When asked why he was reaching for the purse, Mr. Rodriguez told the officer he “did not want to get his girlfriend” into trouble.   Mr. Rodriguez admitted he put cocaine in her purse.   Inside the purse, the officer found “cocaine residue (.08 gram) rolled up in a $20 bill.”

Mr. Rodriguez used four aliases.   He was placed in camp as a juvenile for “joyriding.”   On April 21, 1987, as an adult, Mr. Rodriguez was placed on 24 months misdemeanor probation for a violation of Vehicle Code section 10851.   On July 25, 1988, he was convicted of providing false identification to a police officer (§ 148.9) and was placed on probation.   On January 6, 1988, Mr. Rodriguez was convicted of his first felony, a violation of Vehicle Code section 10851.   He was placed on three years felony probation.   While on felony probation, he was convicted of a robbery arising out of a carjacking.   He was sentenced to prison for the robbery.   As a result of the robbery conviction, his probation resulting from his prior conviction on the unlawful driving of an automobile (Veh.Code, § 10851) was revoked and he was sentenced to prison.   On August 19, 1990, Mr. Rodriguez was paroled.   While on parole, he was arrested for robbery, being an accessory (§ 32), and once again providing false identification to a police officer.   All charges were dismissed although his parole was revoked and he was returned to prison.   On September 19, 1992, Mr. Rodriguez was paroled a second time.   On July 26, 1994, Mr. Rodriguez was arrested in connection with the present case.   He once again was found to be in violation of parole and received an eight-month term in custody.

Mr. Rodriguez worked two to three days per week for his father doing “gardening work” and was paid “under the table,” viz. in violation of state and federal tax laws.   Mr. Rodriguez said he worked for a pool contractor.   However, the telephone number for the pool contractor was disconnected and Mr. Rodriguez's employment in this regard could not be verified.   His employment stability was described as uncertain by the probation officer.   Prior to his arrest and after he was paroled the second time on September 19, 1992, his parole officer indicated, “But ‘by all appearances it seems like [Mr. Rodriguez] was making an earnest attempt to be a responsible citizen.’ ”

Prior to trial, the respondent court indicated it would strike the prior felony conviction if defendant would plead guilty.   The respondent court stated:  “I've indicated ․ that if you plead guilty and admit the priors that I will strike the serious felony prior.  [¶] I will do so for a number of reasons:  first of all, this does appear to be your first drug conviction;  secondly, it appears that you've been productive.   You're working long hours every week;  you just finished your parole.   Your parole officer apparently thought you were doing well;  you've been testing clean for the last nine months of your parole;  also, that the serious felony conviction is close to four years old.   Apparently you got out of prison about two and a half years ago;  and that the quantity of drugs here was small;  and lastly, that you quickly admitted that the drugs were yours and did not allow another person to become—to get into trouble for those drugs.   For those reasons I will strike the prior.” 3  The prosecutor immediately objected to the trial court's proposed disposition and cited the Court of Appeal decision of People v. Superior Court (Romero) (1995) 31 Cal.App.4th 653, 37 Cal.Rptr.2d 364, review granted April 13, 1995 (S045097).   After further discussion the deputy district attorney argued:  “I would remind the court this gentleman does have a fairly lengthy record starting in 1987.   He has a lot of theft offenses.   He's been to prison on two occasions, once in 1987, and once in 1989 for robbery.   He has recently been paroled and completed his parole, but has continued to engage in criminal conduct.   I think this is the type of person the three-strikes law was made to affect, a habitual criminal, a repeat offender who has now reached the level of a second strike.  [¶] The People and the state have only sought to double the punishment against him.   This is not a 25–to–life as is a third strike.   It's only a second strike.  [¶] The People had offered him the minimum required under the second strike, which is—it's a 32–months second strike sentence.   We do object strenuously to the court striking a strike, and I wanted to place it on the record.”   The respondent court then indicated:  “Your arguments are noted.   However, as to Romero, I think—I simply think that case is poorly rendered, and I do think I have authority under Proposition 184 to strike this prior;  so I will do so, as I've indicated.”   Mr. Rodriguez then was advised of his constitutional rights and was advised he would be placed on probation.   Mr. Rodriguez entered a no contest plea and admitted that he previously had been convicted of the serious felony as well as had served a prior prison term.   After securing the approval and concurrence of defense counsel, the respondent court stated:  “The court finds the defendant has knowingly and intelligently waived his rights, has freely and voluntarily changed his plea to guilty to counts 1 and 2, and has admitted the prior as alleged.  [¶] Accordingly, the court accepts the defendant's plea and judges him guilty and finds the prior to be true.”   After the plea and the admissions were entered, the respondent court then struck the prior serious felony conviction and placed Mr. Rodriguez on probation.

B. Mr. Pipkin's plea and grant of probation

Mr. Pipkin was charged in count 1 of the information with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1).   In count 2, he was charged with corporal injury on a spouse in violation of section 273.5, subdivision (a).   Also, it was alleged that Mr. Pipkin had previously been convicted of grand theft from the person in violation of section 487, subdivision (c) and robbery in violation of section 211.   According to the probation report, Mr. Pipkin struck his “live-in girlfriend” in the face.   Mr. Pipkin was arrested while walking away from his residence.   According to the preliminary hearing transcript, in his shirt pocket was a loaded .25 caliber pistol with the safety off and a round in the chamber.   The weapon was “ready to fire.”   On March 3, 1982, defendant was sentenced to prison for robbery.   On March 5, 1982, defendant was sentenced to prison for grand theft from the person.  (§ 487.)   Later, Mr. Pipkin was paroled but was returned to prison on a parole violation on December 14, 1984.   On March 23, 1985, he was once again paroled.   On March 18, 1981, Mr. Pipkin was convicted of misdemeanor battery (§ 242) and placed on two years probation.   The probation officer in the present case recommended probation be granted despite Mr. Pipkin's “tendency towards violence”  The probation officer apparently did not know that because Mr. Pipkin had a prior serious felony conviction, he was statutorily ineligible for probation.

After he was tried, the jury was unable to reach a verdict, although 10 of the 12 jurors voted to return guilty verdicts.   After the mistrial on February 1, 1995, at an in-chambers conference, defense counsel requested that the respondent court strike the serious prior felony conviction allegation.   The deputy district attorney objected indicating that the respondent court “did not have the authority to strike the prior.”   While in chambers, the respondent court indicated it would “strike the prior.”

Proceedings were then held in open court.   After pleading no contest to a single count of felon in possession of a firearm, the following transpired:  “[Deputy district attorney]:  Sir, it's further alleged as to both these counts that you suffered a prior conviction for robbery, in case number A900279, a serious felony, on March 3rd, 1982 in—pursuant to 667(B) through (I).  [¶]  Do you admit that allegation, sir?”  [¶] Defendant Pipkin:  No contest.”   Immediately thereafter, the court found the prior conviction allegation was true.   The court then struck the prior conviction “in the interest of justice.”   Defendant was then placed on probation over the prosecutor's objection.

III. DISCUSSION

A. Section 667 and principles of review

The prosecution contends the respondent courts did not have the authority to place defendants on probation.   We conclude based upon well established rules of statutory interpretation that the respondent courts did not have the authority to place defendants on probation.   The relevant provision of law is section 667 which states in pertinent part:  “(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:  ․ (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense․  [¶] (4) There shall not be a commitment to any other facility than the state prison․”  Section 667, subdivision (d)(1) defines a felony which is the subject of the no probation prohibition in section 667, subdivision (c)(2) as follows:  “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 1192.7 as a serious felony in this state.”  (§ 667, subd. (d)(1).)  Robbery is a serious felony.  (§ 1192.7, subd. (c)(19).)

In applying these provisions of law, we must interpret section 667 to carry out the Legislature's intent.   Our Supreme Court has noted:  “When interpreting a statute our primary task is to determine the Legislature's intent.  [Citation.]   In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.”  [Citation.]  (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218;  People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   Further, our Supreme Court has noted:  “ ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute)․” ’  (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.)   However, the literal meaning of a statute must be in accord with its purpose as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658–659, 25 Cal.Rptr.2d 109, 863 P.2d 179, as follows:  “We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.  [Citation.]   Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute]․’ ”  In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299, our Supreme Court added:  “The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citations.]   An interpretation that renders related provisions nugatory must be avoided [citation];  each sentence must be read not in isolation but in light of the statutory scheme [citation]․”

B. The effect of Tanner on section 667

 The express language of section 667, subdivision (c)(2) and (4) explicitly prohibited grants of probation in the present cases because both Mr. Rodriguez and Mr. Pipkin had previously been convicted of robbery and the serious prior felony conviction allegations had been both “pled and proved․” (§ 667, subd. (c).)  Subject to constitutional prohibitions against cruel or unusual punishment, (cf. People v. Wingo (1975) 14 Cal.3d 169, 183, 121 Cal.Rptr. 97, 534 P.2d 1001) the availability of probation is exclusively a legislative matter subject to appropriate constitutional limitations.   Probation is a legal concept created by statute.  (People v. Tanner, supra, 24 Cal.3d at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Almodovar (1987) 190 Cal.App.3d 732, 742, 235 Cal.Rptr. 616.)   The California Supreme Court has noted:  “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty enhancing factors for conduct made criminal by legislative enactment.  ‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’  [Citation.]  ‘[T]he legislative branch of the government has the power to declare that in certain ․ cases, probation may not be granted.   The exercise of such power in no way impinges upon the jurisdiction of the judicial branch of the government.   It does not impair, restrict nor enlarge upon the jurisdiction of the courts.   The function of the courts is to determine the guilt or innocence of an accused.   What disposition may thereafter be made by way of penalty is for the Legislature to determine.’  [Citations.]”  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328;  accord, Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.)   Absolute statutory prohibitions against any grant of probation have been upheld and applied in varying circumstances.  (People v. Rodriguez (1986) 42 Cal.3d 1005, 1018–1019, 232 Cal.Rptr. 132, 728 P.2d 202 [§ 1203.06 prohibition against probation when defendant personally uses a firearm in the commission of a specified offense];  People v. Tanner, supra, 24 Cal.3d at pp. 519–520, 156 Cal.Rptr. 450, 596 P.2d 328 [§ 1203.06 firearm use finding];  People v. Cowan (1987) 194 Cal.App.3d 756, 758–760, 239 Cal.Rptr. 796 [§ 1203.066 subds. (a)(2) and (8) bodily injury and substantial sexual conduct findings];  People v. McNulty (1988) 202 Cal.App.3d 624, 631–635, 249 Cal.Rptr. 22 [§ 1203.065, subd. (a) probation prohibition for pimps or panderers];  People v. Pacheco (1985) 176 Cal.App.3d 100, 101–103, 221 Cal.Rptr. 369 [§ 1203.07, subd. (a)(3) bar to probationary grant when a defendant sells heroin and has previously been convicted of selling a controlled substance];  People v. Enriquez (1985) 173 Cal.App.3d 990, 993, 219 Cal.Rptr. 325 [prohibition in § 1203.07, subd. (a) against probation for sellers of phencyclidine];  People v. Gayther (1980) 110 Cal.App.3d 79, 87, 167 Cal.Rptr. 700 [former § 264.2 requirement of probation denial for a rapist];  People v. Peace (1980) 107 Cal.App.3d 996, 1002–1004, 166 Cal.Rptr. 202 [denial of probation pursuant to § 1209, subd. (a) to defendant who inflicted great bodily injury on person who was over 60 years of age];  see 3 Witkin and Epstein, Cal.Criminal Law (2d ed. 1989) §§ 1630–1640, pp. 1944–1955.)

Defendants argue however, that despite the statutory prohibition against probation once the prior serious felony convictions were “pled and proved” (§ 667, subd. (c));  a court can still grant probation if it strikes an allegation of a prior serious or violent felony conviction pursuant to section 1385.4  However, the controlling authority in this regard is People v. Tanner, supra, 24 Cal.3d at pages 518–521, 156 Cal.Rptr. 450, 596 P.2d 328 where the California Supreme Court held that the more specific section 1203.06 prohibition against probation when the accused has used a firearm was not subject to the general authority conferred on judges pursuant to section 1385 to strike or dismiss special findings.   In Tanner, former section 1203.06 provided in pertinent part:  “ ‘Notwithstanding the provisions of section 1203:  [¶] (a) Probation shall not be granted to ․:  [a]ny person who used a firearm during the commission ․ of any of the following crimes:  (iii) Robbery, in violation of Section 211․”  (Italics in original.)   The issue in Tanner was as follows:  “This appeal involves a single issue:  Did the Legislature in enacting section 1203.06 intend its mandatory language be subject to preexisting statutory language providing that a ‘court may ․ of its own motion ․ and in furtherance of justice, order an action to be dismissed’?”  (People v. Tanner, supra, 24 Cal.3d at p. 518, 156 Cal.Rptr. 450, 596 P.2d 328.)   After noting that section 1385 had been construed to permit a trial judge to strike an allegation which enhanced a sentence, the Supreme Court noted, “This case arises because the Legislature in enacting section 1203.06 did not expressly state whether the mandatory provision of section 1203.06 would be subject to judicial discretion pursuant to section 1385.”  (Ibid.)  After examining the development of the law which restricted the judicial power to always grant probation, the Supreme Court held:  “We must therefore conclude the Legislature intends discretion may be exercised in the case of crimes falling within section 1203 but not within section 1203.06.   Any other construction restores the pre–1975 law allowing a court to grant probation to any criminal if the court deems that to do so would be in the interest of justice.   Such judicial resurrection renders the 1975 legislation a nullity.  [Citation.]  [¶]  Our conclusion is supported by pertinent and timely expression of legislative intent existing when section 1203.06 was enacted.   The Legislative Counsel's summary of the 1975 enactment states that trial court discretion to grant probation in unusual cases is eliminated so that ‘probation and suspension of sentence would be denied, without any exception in unusual cases in the interest of justice, to any person who uses a firearm during the commission of various felonies, including ․ robbery․’  (Leg. Counsel's Dig. of Sen. Bill No. 278, 1 Stats.1975 (Reg.Sess.) Summary Dig., ch. 1004, p. 262;  italics added.)   This statement is consistent with a staff memorandum prepared by the Senate Committee on the Judiciary stating that Senate Bill No. 278 (in which the 1975 amendments to §§ 1203 and 1203.06 were introduced), ‘Prohibits, without exception, the granting of probation to persons who have carried or used firearms in connection with certain crimes, for which probation may be obtained under existing law in unusual cases in the interests of justice.’  (Italics added.)   Finally, there exists the executive statement of Governor Brown issued by press release in which he explained the effects of the legislation.   He stated:  ‘By signing this bill, I want to send a clear message to every person in this state that using a gun in the commission of a serious crime means a stiff prison sentence.   Whatever the circumstances, however eloquent the lawyer, judges will no longer have discretion to grant probation even to first offenders.’  (Governor's Press Release No. 284 (Sept. 23, 1975), italics added.)  [¶]  Finally, whereas section 1385 is general in nature, relating to the broad scope of dismissal, section 1203.06 is specific, relating to the limited power of dismissal for purposes of probation—the very matter at issue.   Section 1203.06 is the later enactment, adopted by the Legislature in response to the particular problem at hand.   A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates.  [Citation.]”   (People v. Tanner, supra, 24 Cal.3d at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328.)

 Tanner is the controlling authority.   As noted earlier, the statute at issue in Tanner provided in pertinent part, “Probation shall not be granted to, nor shall the execution of sentence be suspended․”  Section 667, subdivision (c)(2) provides that once a prior serious or violent felony conviction has been pled and proved the following is to occur:  “Notwithstanding any other law, ․ the court shall adhere to each of the following:  [¶] (2) Probation for the current offense shall not be granted․  [¶] (4) There shall not be a commitment to any other facility than state prison․”   Nothing could be clearer, once a prior conviction has been “pled and proved” section 667, subdivision (c) prohibits a grant of probation when a defendant has a prior record such as Mr. Rodriguez or Mr. Pipkin.  Tanner is the California Supreme Court decision which is most closely applicable to the present cases.

Defendants argue, as did the accused in Tanner in connection with the firearm use finding, that section 1385 permitted the respondent courts to strike the determinations that they had each been previously convicted of a serious felony.   We respectfully reject these arguments for the following reasons.   First, as in Tanner, the language in section 667, subdivision (c)(2) and (4) prohibits probation and requires a state prison commitment be imposed.  Section 667, subdivision (c) states in clear and unequivocal terms:  “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 ․ the court shall adhere to the each of the following ․' and the statute then proceeds to set forth the complete bar to a grant of probation when the accused has previously been convicted of a violent or serious felony.   In other words, section 667, subdivision (c) requires probation be denied when the “defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions․”

 Second, defendants argue Tanner is inapplicable because section 667 itself allows for a prior conviction to be stricken;  defendants rely on the following language in section 667, subdivisions (f) and (g) which states:  “(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).”   This language is inapplicable to the present case because the prior convictions had been “pled and proved․”  (§ 667, subd. (c).)  Section 667, subdivision (c) requires a trial judge to deny probation and sentence the defendant to prison once the serious prior conviction has been “pled and proved․”  Section 667, subdivision (f)(2) grants the prosecutor the opportunity to move to strike or dismiss a “prior felony conviction allegation in the furtherance of justice pursuant to Section 1385․”  (Italics added.)  Section 667, subdivision (f)(2) does not address a prosecutor's power to move to dismiss a prior conviction that has been “pled and proved” (§ 667, subd. (c)) nor the authority of a trial judge to grant probation under such circumstances.   By contrast section 667, subdivision (c) is unequivocal in its scope and intent—there is to be no probation once a prior serious felony conviction has been “pled and proved․”  (§ 667, subd. (c).)  The more equivocal language in section 667, subdivision (f)(2) concerning an allegation does not permit trial judges to grant probation once the prior felony conviction has been “pled and proved․” (§ 667, subd. (c).)

C. Legislative committee reports

1. Subdivision (b)

As in Tanner, the legislative history indicates persons such as Mr. Rodriguez and Mr. Pipkin were not to be given probation.  Section 667, subdivision (b) states that the intent of the Legislature in adopting the 1994 amendments to section 667 was to “ensure ․ greater punishment for those who commit a felony and have been previously convicted of serious ․ felony offenses.”   A report prepared for a January 26, 1994, Assembly Committee on Ways and Means hearing succinctly stated:  “This bill would enact a so-called three-strikes-and-you're-out law.   Specifically, this bill would:  ․ [¶]  3. Prohibit probation for inmates with one or more serious or violent priors.”  (See Rep. of Assem. Com. on Ways and Means on Assem. Bill No. 971 (January 26, 1994) p. 1 (1993–1994 Reg. Sess.).)   The report prepared for an April 20, 1994, Assembly Committee on Public Safety hearing stated, after noting that under current law, except as otherwise provided, a defendant was entitled to probation, “Provides that a person previously convicted of a felony, who is convicted of one or more felonies, may not be granted probation by the court.”  (See Rep. of Assem. Com. on Public Safety on Assem. Bill No. 971 (April 20, 1994) p. 2 (1994 Reg. Sess.).5 )  When the section 667 amendments were pending before the Senate Committee on Judiciary, a report prepared for the February 17, 1994, hearing stated:  “This bill would provide that a person previously convicted of a violent or serious felony, who is convicted of one or more felonies, may not be granted probation by the court.”  (See Rep. of Sen. Com. on Judiciary on Assem. Bill No. 971 (February 17, 1994) p. 3 (1993–1994 Reg. Sess.).)   The foregoing legislative documents reflect the exact same intentions on the part of the Assembly members and Senators as the reports referred to in Tanner.

2. Subdivision (f)(2)

Our construction of section 667, subdivision (f)(2) and limiting it to situations before the prior conviction allegation is “pled and proved” (§ 667, subd. (c)) is consistent with the legislative intent as reflected in the language of the statute and pertinent committee reports.   The language of section 667, subdivision (c) is, as previously noted, clear and unequivocal—“[n]otwithstanding any other law” once the prior conviction has been “pled and proved” the judge must sentence the defendant to prison. (§ 667, subd. (c)(2) and (4).)   Further, section 667, subdivision (b) indicated that one of the purposes of the 1994 amendments to the habitual offender statute was to “ensure ․ greater punishment for those who commit a felony and have been previously convicted [of] serious and/or violent felony offenses.”  (See Rep. on Assem.Bill No. 971 prepared for Sen.Com. on Judiciary (February 17, 1994) p. 4 (1994 Reg.Sess.);   accord, Sen.Rules Com., Office of Floor Analyses, 3d reading analysis of Assem.Bill No. 971 (1993–1994 Reg.Sess.) p. 6.)   The language in section 667, subdivision (f)(2) was inserted as part of substantive amendments designed to give trial judges the authority to strike prior felony conviction allegations.   When originally introduced, the striking provision stated:  “The prosecuting attorney may move to dismiss a prior felony conviction allegation 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 the allegation.”  (Assem.Bill No. 971 (1993–1994 Reg.Sess.) § 1, pp. 4–5.)   The same language appeared in the bill after Assembly amendments on April 12, 1993.  (Assem.Amend. to Assem.Bill No. 971 (1994–1994 (Reg.Sess.) April 12, 1993, § 1, pp. 6–7.)   After the Assembly passed a version of the bill, it was amended in the Senate to adopt the language which now appears in section 667, subdivision (f)(2).   The Senate Committee on Judiciary prepared a report for use by the full upper house in connection with floor amendments concerning the new language, which stated:  “The ․ bill would also provide for dismissal or striking of a prior felony conviction allegation in furtherance of justice upon motion of the prosecuting attorney and with agreement by the court.”  (See Senate Com. on Judiciary Analysis of Assem.Bill No. 971 (1993–1994 Reg.Sess.) March 2, 1994, p. 1., italics added.)   The Senate amendments which adopted the present language in section 667, subdivision (f)(2) were viewed as a “Substantive ” modification in the same judiciary committee report.  (Ibid.)  The key point is that like the statute itself the Senate Committee on Judiciary report focuses on the power of the court to strike the “allegation” pursuant to section 1385;  not the finding after it had been “pled and proved․” (§ 667, subd. (c).)

D. Post-Tanner decisions

Defendants argue that Tanner is inapposite authority because of other California Supreme Court authority.   Defendants reason that post-Tanner decisions of the California Supreme Court require us to conclude that the respondent courts had the authority pursuant to section 1385 to strike the prior serious felony allegations which had been “pled and proved․” (§ 667, subd. (c).)  The authority defendants rely upon involve post-Tanner decisions of the California Supreme Court which construe section 1385 to permit special allegations to be stricken.  (People v. Fritz (1985) 40 Cal.3d 227, 229–231, 219 Cal.Rptr. 460, 707 P.2d 833, abrogated by statute, Stats.1986, ch. 85, §§ 1.5, 3, pp. 211–212;  [trial judge may strike prior serious felony five year enhancement pursuant to section 1385];  People v. Marsh (1984) 36 Cal.3d 134, 142–145, 202 Cal.Rptr. 92, 679 P.2d 1033 [§ 1385 empowers court to strike bodily harm and ransom special allegations];  People v. Williams (1981) 30 Cal.3d 470, 483–486, 179 Cal.Rptr. 443, 637 P.2d 1029, abrogated by initiative measure adopting § 1385.1 (Prop. 115) approved June 5, 1990, [trial judge can use section 1385 to strike special circumstances finding].)  Each of these cases, none of which dealt with ineligibility for probation, focused on the absence of evidence of legislative or voter intent to restrict a trial judge from dismissing a special allegation pursuant to section 1385.   For example in Fritz, the Supreme Court held that the absence of express language in section 667 or a discussion in the voter pamphlet concerning the power to strike the enhancement precluded holding that section 1385 was unavailable to a sentencing judge.  (People v. Fritz, supra, 40 Cal.3d at pp. 230–231, 219 Cal.Rptr. 460, 707 P.2d 833.)   In Marsh, the Supreme Court held that the absence of any language in the enhancements which alluded in any fashion to the power to strike, permitted the trial judge to exercise discretion pursuant to section 1385.  (People v. Marsh, supra, 36 Cal.3d at p. 142–144, 202 Cal.Rptr. 92, 679 P.2d 1033.)   In Williams, the Supreme Court held that the silence of legislative history materials and the statute on the subject permitted a trial judge to strike a special circumstances finding pursuant to section 1385.  (People v. Williams, supra, 30 Cal.3d at pp. 484–486, 179 Cal.Rptr. 443, 637 P.2d 1029.)

However, our Supreme Court has held:  “But it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.  (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1019, 232 Cal.Rptr. 132, 728 P.2d 202 ․ [section 1385 may be held inapplicable ‘in the face of [a] more specific proscription on the court's power’];  People v. Tanner, supra, 24 Cal.3d at pp. 519–521, 156 Cal.Rptr. 450, 596 P.2d 328 [specific language of section 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under section 1385];  see also People v. Dillon (1983) 34 Cal.3d 441, 467, 194 Cal.Rptr. 390, 668 P.2d 697 ․ [deletion of provision indicates legislative intent to change law].)  As we stated in People v. Williams, supra, 30 Cal.3d at page 482, 179 Cal.Rptr. 443, 637 P.2d 1029, ‘Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.’ ”  (People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Similarly, in People v. Rodriguez, supra, 42 Cal.3d at pages 1018–1019, 232 Cal.Rptr. 132, 728 P.2d 202, the defendant argued that the Tanner prohibition against striking a firearm use finding had been abrogated by People v. Williams, supra, 30 Cal.3d at page 483, 179 Cal.Rptr. 443, 637 P.2d 1029 which had held that section 1385 permitted a judge to strike a special circumstances finding.   In Rodriguez, the Supreme Court held:  “The language in Williams referring to [People v. Dorsey (1972) 28 Cal.App.3d 15, 19, 104 Cal.Rptr. 326] merely indicated that it and similar cases remained valid as support for the proposition that ‘section 1385 is applicable in the absence of a specification by the Legislature to the contrary.’  [Citation.]   We did not purport to overrule the specific holding in Tanner which continues to apply here.   Section 1203.06 precluded the trial court from striking the use finding;  the exercise of judicial discretion permitted pursuant to section 1385 was inapplicable in the face of the more specific proscription on the court's power.”  (People v. Rodriguez, supra, 42 Cal.3d at p. 1019, 232 Cal.Rptr. 132, 728 P.2d 202.)   Clearly, Tanner remains an accurate statement of California law.  Tanner is the controlling authority given the statutory language in section 667, subdivision (c)(2) and (4) and the pertinent legislative history.   Nothing in Fritz, Marsh, and Williams warrants a different result.

E. Separation of powers issue

 Defendants argue that section 667, subdivision (f) violates the doctrine of separation of powers set forth in article III section 3 and article VI, section 1 of the California Constitution 6 .  They reason that since a trial judge may only strike a prior conviction allegation upon the motion of the prosecutor, the doctrine of separation of powers has been violated given the holdings in:  People v. Tenorio (1970) 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 473 P.2d 993;  Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124–128, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Navarro (1972) 7 Cal.3d 248, 258–260, 102 Cal.Rptr. 137, 497 P.2d 481;  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61–68, 113 Cal.Rptr. 21, 520 P.2d 405;  and Davis v. Municipal Court (1988) 46 Cal.3d 64, 82–83, 249 Cal.Rptr. 300, 757 P.2d 11.   These cases establish that the judicial power may not be subject to prosecutorial control or concurrence after the filing of charges in the following contexts:  the power to strike a prior conviction pursuant to section 1385 for purposes of sentencing may not be conditioned upon prosecutorial approval (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993);  the authority of a magistrate to reduce a felony to a misdemeanor may not be subject to the right of the prosecutor to prohibit such a reduction (Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140);  the requirement that the prosecutor concur in the placement of the accused in a treatment program violates constitutional rule providing for separation of powers (People v. Navarro, supra, 7 Cal.3d at pp. 258–260, 102 Cal.Rptr. 137, 497 P.2d 481);  and the existence of a prosecutorial veto as to whether a defendant may be placed in a diversion program is violative of the doctrine of separation of powers.   (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at pp. 61–68, 113 Cal.Rptr. 21, 520 P.2d 405.)   However, this body of authority is inapplicable to the present case because the purported prosecutorial veto contained in section 667, subdivision (f) cannot apply because the prior convictions had been “pled and proved․” (§ 667, subd. (c).)  In other words, once the prior convictions had been “pled and proved” within the meaning of section 667, subdivision (c), the power to strike pursuant to section 1385 for purposes of granting probation was not dependent on prosecutorial concurrence;  rather striking the prior convictions pursuant to section 1385 for purposes of placing recidivist felons on probation was absolutely prohibited.   There is no violation of the doctrine of separation of powers when the Legislature, without conditioning the exercise of judicial power on the concurrence of a representative of the executive branch of government, absolutely prohibits a judge from making a particular sentencing decision.  (Cf. Sledge v. Superior Court (1974) 11 Cal.3d 70, 74, 113 Cal.Rptr. 28, 520 P.2d 412;  People v. Navarro, supra, 7 Cal.3d at pp. 259–260, 102 Cal.Rptr. 137, 497 P.2d 481;  Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993;  People v. Clay (1971) 18 Cal.App.3d 964, 969, 96 Cal.Rptr. 213.)   Since section 667, subdivision (c) bars a grant of probation when a prior serious felony conviction has been “pled and proved,” no “prosecutorial ․ ‘veto’ ” (see Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1083, 2 Cal.Rptr.2d 160, 820 P.2d 262;  Davis v. Municipal Court, supra, 46 Cal.3d at p. 81, 249 Cal.Rptr. 300, 757 P.2d 11;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 202, fn. 22, 137 Cal.Rptr. 460, 561 P.2d 1148) exists over the exercise of the judicial function after a prior conviction has been “pled and proved” (§ 667, subd. (c)) in terms of the decision to grant probation.

F. Proposition 184

 Nothing in Proposition 184 adopted by the voters on November 8, 1994, changed the statutory prohibition against granting probation once a serious prior felony conviction has been “pled and proved” within the meaning of section 667, subdivision (c).  Section 667, subdivision (c) was adopted by the Legislature as urgency legislation and went into effect on March 7, 1994.  (Stats.1994, ch. 12, No. 1 Deering's Adv.Legis.Service, pp. 72–75.)   Mr. Rodriguez and Mr. Pipkin committed their crimes on July 29, 1994, and September 23, 1994 respectively.  Section 667, subdivision (c) with its explicit requirement that probation be denied when a prior serious felony conviction had been “pled and proved” was in full force and effect when defendants committed their crimes.   While their cases were awaiting trial, the voters adopted Proposition 184 on November 8, 1994.   Proposition 184 enacted section 1170.12 7 which directly addressed in explicit statutory language whether a defendant with a prior serious felony conviction which had been “pled and proved” could be granted probation.   Section 1170.12, subdivision (a) states in pertinent part, almost exactly as section 667, subdivision (c):  “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:  [¶] ․ (2) Probation for the current offense shall not be granted․  [¶] (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.”   This is substantially the same language appearing in section 667, subdivision (c)(2) and (4).   The effect of People v. Tanner, supra, 24 Cal.3d at pages 519–521, 156 Cal.Rptr. 450, 596 P.2d 328 on section 1170.12, subdivision (a)(2) and (4) as adopted pursuant to Proposition 184 is the same as in section 667, subdivision (c)(2) and (4).  Section 667, subdivision (c) contains substantially the same language as all of section 1170.12, subdivision (a).  Tanner applies equally to both enactments and bars any order disposition other than state prison once a serious prior conviction has been “pled and proved․” (§ 1170.12, subd. (a).)

 Additionally, the voter pamphlet prepared for Proposition 184 indicates a voter intent to deny probation for defendants with prior felony convictions which have been “pled and proved․” (§ 1170.12, subd. (a).)  In the event an enactment is ambiguous, reference to a ballot pamphlet is appropriate to determine voter intent.  (Delaney v. Superior Court, supra, 50 Cal.3d at p. 801–802, 268 Cal.Rptr. 753, 789 P.2d 934;  Lungren v. Deukmejian, supra, 45 Cal.3d at pp. 742–743, 248 Cal.Rptr. 115, 755 P.2d 299.)   The weight of the evidence of voter intent as reflected in the ballot pamphlet indicates that a prior serious felony conviction, once “pled and proved” (§ 1170.12, subd. (a)) cannot be stricken for purposes of granting probation.   The “Official Title and Summary Prepared by the Attorney General” in the voter pamphlet described the initiative as the “Increased Sentences.   Repeat Offenders.   Initiative Statute [ ]” and summarized the proposition in part as follows, “Increases sentences for defendants convicted of any felony who have prior convictions for violent or serious felonies such as rape, robbery or burglary.”  (Ballot Pamp. Proposed Amends. to Pen. Code § 1170.12, Gen. Elec. (Nov. 8, 1994), p. 32.)   The Legislative Counsel's analysis in the voter pamphlet took a different approach.   That analysis focused on the fact that the provisions of section 667 which had previously been adopted in March 1994 were simply reenacted by Proposition 184.   The Legislative Analyst noted:  “This measure proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.   Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.”  (Id. at p. 33.)   After describing the increased sentences resulting from the initiative, the Legislative Analyst described the effect of the provisions of both section 667 as amended in March 1994 and the proposed section 1170.12 as follows:  “Both measures require that a person who is convicted of any felony (not just a serious or violent felony) and who has been previously convicted of a serious or violent felony will be sentenced to state prison.   Thus, a court cannot grant the person probation or place the person in an alternative program, such as a drug treatment program.”  (Ibid.)  While discussing the fiscal effects of the initiative the Legislative Analyst's discussion noted that Proposition 184 “reaffirms the prison sentencing changes previously enacted by the Legislature and the Governor.”  (Id. at p. 34.)   Further, in the discussion concerning fiscal effects, the analysis noted in the context of savings to be experienced by local probation departments and the like, “Local governments (particularly counties) will experience some savings because some persons will be shifted to state prison who would have otherwise been kept in county jail or supervised in the community by county probation departments.”  (Ibid.)  Finally, the “Argument in Favor of Proposition 184” indicated when a defendant had one prior serious or violent felony conviction, the sentencing result would be, “No probation.”  (Id. at p. 36.)   All of this language is consistent with the conclusion that once a prior conviction has been “pled and proved․” (§ 1170.12, subd. (a)), probation must be denied.

 The only language in any of the voter intent materials pertinent to section 1170.12 or the committee reports prepared in connection with the 1994 amendments to section 667 which is in any way consistent with the suggestion a “pled and proved” (§ 1170.12, subd. (a)) prior felony conviction may be stricken appears in the “Argument in Favor of Proposition 184.”   The argument is as follows, “Prosecutors have discretion, with court approval, to dismiss a prior strike in the interests of justice.”  (Ballot Pamp. Proposed Amends. to Pen. Code § 1170.12, Gen. Elec. (Nov. 8, 1994) p. 36.)   However, this language, phrased in the political jargon of a “strike” is insufficient to support the conclusion a trial judge may dismiss pursuant to section 1385 a prior serious felony conviction which has been “pled and proved” (§ 1170.12, subd. (a)) for purposes of granting probation.   Voter intent materials may contain conflicting evidence of the electorate's concerns which require judicial analysis of differing inferences.  (Delaney v. Superior Court, supra, 50 Cal.3d at pp. 801–803, 268 Cal.Rptr. 753, 789 P.2d 934;  In re Marriage of Bouquet (1976) 16 Cal.3d 583, 590, 128 Cal.Rptr. 427, 546 P.2d 1371;  Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590–592, fn. 9, 37 Cal.Rptr.2d 653.)   The single reference in the voter pamphlet to dismissing a “strike” does not support the conclusion a trial judge may dismiss a prior felony conviction which has been “pled and proved․” (§ 1170.12, subd. (a).)  To begin with, the most important evidence of the intent of the voters, the language of the initiative, prohibits a grant of probation once a prior serious felony conviction has been “pled and proved․” (§ 1170.12, subd. (a).)  Further, the summary of the Attorney General and the discussion of the Legislative Analyst indicate the initiative would result in the denial of probation and increase in punishment for persons with prior serious felony convictions.   Moreover, the Legislative Analyst's analysis indicates that Proposition 184 was merely a reenactment of the provisions of section 667 as amended in March 1994.   As we previously noted, those amendments prohibited a grant of probation once a prior serious felony conviction had been “pled and proved․” (§ 667, subd. (c).)  Additionally, none of the voter intent materials indicate that once a prior conviction had been “pled and proved” (§ 1170.12, subd. (a)), there is any other disposition available to a trial judge other than state prison.   Accordingly, when these factors are considered, we conclude that the single reference in the proponents' arguments to a prosecutor's “discretion, with court approval to dismiss a prior strike in the interest of justice,” does not warrant affirming the orders granting probation in these cases.   This is particularly true given the express statutory language adopted by the voters which requires a state prison commitment when a prior serious felony conviction has been “proved and pled․” (§ 1170.12, subd. (a).)  Accordingly, nothing in section 1170.12 alters the effect of section 667, subdivision (c) upon defendants whose prior robbery convictions had been pled and proved.8

G. Defendants were convicted and their prior serious felony convictions were pled and proved

 The sole remaining issue is whether defendants were “convicted” and their prior convictions had been “pled and proved” within the meaning of section 667, subdivision (c) and section 1170.12, subdivision (a).   First, when defendants entered their no contest pleas, they were convicted under California law.   In Stephens v. Toomey (1959) 51 Cal.2d 864, 869, 338 P.2d 182, the California Supreme Court held, “A plea of guilty constitutes a conviction.”   Other Supreme Court decisions are in accord.  (People v. Balderas (1985) 41 Cal.3d 144, 203, 222 Cal.Rptr. 184, 711 P.2d 480;  People v. Stanworth (1974) 11 Cal.3d 588, 606, 114 Cal.Rptr. 250, 522 P.2d 1058;  In re Williams (1969) 1 Cal.3d 168, 175, 81 Cal.Rptr. 784, 460 P.2d 984;  People v. Laudermilk (1967) 67 Cal.2d 272, 281, 61 Cal.Rptr. 644, 431 P.2d 228;   People v. Banks (1959) 53 Cal.2d 370, 390, 1 Cal.Rptr. 669, 348 P.2d 102;   People v. Jones (1959) 52 Cal.2d 636, 651, 343 P.2d 577;  People v. Williams (1945) 27 Cal.2d 220, 228, 163 P.2d 692;  People v. Goldstein (1867) 32 Cal. 432, 433.)   Quite naturally, the Courts of Appeal have likewise consistently held a guilty plea constitutes a conviction.  (People v. Jones (1995) 33 Cal.App.4th 1087, 1093, 39 Cal.Rptr.2d 530;  People v. Shirley (1993) 18 Cal.App.4th 40, 47, 22 Cal.Rptr.2d 340;  McAlpine v. Superior Court (1989) 209 Cal.App.3d 1, 6, 257 Cal.Rptr. 32;  People v. Caron (1981) 115 Cal.App.3d 236, 243, 171 Cal.Rptr. 203;  Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 154, 139 Cal.Rptr. 121;  People v. Enos (1973) 34 Cal.App.3d 25, 40–41, 109 Cal.Rptr. 876;  People v. Rodriguez (1966) 243 Cal.App.2d 522, 527, 52 Cal.Rptr. 643;  People v. Loomis (1965) 231 Cal.App.2d 594, 596, 42 Cal.Rptr. 124;  People v. Gannaro (1963) 216 Cal.App.2d 25, 30 Cal.Rptr. 711;  People v. McClain (1962) 209 Cal.App.2d 224, 229, 26 Cal.Rptr. 244;  People v. Kepford (1921) 52 Cal.App. 508, 513, 199 P. 64;  see People v. Rhoads (1990) 221 Cal.App.3d 56, 60–61, 270 Cal.Rptr. 266.)   Hence, in the present cases, defendants were convicted within the meaning of sections 667, subdivision (c) and 1170.12, subdivision (a) when their no contest pleas were entered.

 Similarly, the California Supreme Court has held that an admission concerning a prior felony conviction is sufficient to “prove” the validity of such a special allegation.  (People v. Jackson (1950) 36 Cal.2d 281, 287–288, 223 P.2d 236;  In re Gilliam (1945) 26 Cal.2d 860, 866, 161 P.2d 793.)   The Courts of Appeal are in agreement.  (People v. Flint (1986) 180 Cal.App.3d 13, 21, 225 Cal.Rptr. 323;  People v. Greenwell (1962) 203 Cal.App.2d 1, 4, 21 Cal.Rptr. 161;  People v. Suggs (1956) 142 Cal.App.2d 142, 145, 297 P.2d 1039;  People v. Allen (1953) 119 Cal.App.2d 365, 368, 259 P.2d 474;  People v. Herod (1952) 112 Cal.App.2d 764, 766, 247 P.2d 127;  In re Valenzuela (1945) 71 Cal.App.2d 198, 200, 162 P.2d 301;  People v. Stone (1945) 69 Cal.App.2d 533, 536, 159 P.2d 701.)   Section 1025 provides in part, “When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction.   If he answers that he has, his answer must be entered in the minutes of the court, and must, unless withdrawn by consent of the court, be conclusive of the fact of his having suffered such previous conviction in all subsequent proceedings․”   The reference to “subsequent proceedings” includes matters occurring in the respondent courts as well as on appeal.  (In re Seeley (1946) 29 Cal.2d 294, 297, 176 P.2d 24.)   Accordingly, the prior conviction allegations in the present case were proven under California law when defendants entered their admissions.   To sum up, after the pleas and admissions were entered, defendants stood “convicted” and the priors which had been pled had been proven;  hence the respondent courts could not grant probation given the explicit language in sections 667, subdivision (c) and 1170.12, subdivision (a).  (See People v. Jenkins (1995) 10 Cal.4th 234, 238, fn. 2, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

IV. DISPOSITION 9

Since the respondent courts did not have the authority under section 1385 to strike the findings pursuant to section 667, subdivision (c) which had been “pled and proved,” for purposes of granting probation, the People are entitled to a writ of mandate setting aside the probationary dispositions.   Because the pleas were entered with the express promise that probation would be granted, defendants are entitled to an opportunity to withdraw their no contest pleas.

I concur under the compulsion of People v. Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743.

FOOTNOTES

FN1. Unless otherwise noted, all future references are to the Penal Code.  Section 667, as it was in effect when defendants committed their crimes provided in its entirety:  “(a)(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.  [¶] (2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this subdivision to apply.  [¶] (3) The Legislature may increase the length of the enhancement of sentence provided in this subdivision by a statute passed by majority vote of each house thereof.  [¶] (4) As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.  [¶] (5) This subdivision shall not apply to a person convicted of selling, furnishing, administering, or giving, or offering to sell, furnish, administer, or give to a minor any methamphetamine-related drug or any precursors of methamphetamine unless the prior conviction was for a serious felony described in subparagraph (24) of subdivision (c) of Section 1192.7.  [¶] (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 felony 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).  [¶] (h) All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993.  [¶] (i) If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.  [¶] (j) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”.  FN1. Unless otherwise noted, all future references are to the Penal Code.  Section 667, as it was in effect when defendants committed their crimes provided in its entirety:  “(a)(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.  [¶] (2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this subdivision to apply.  [¶] (3) The Legislature may increase the length of the enhancement of sentence provided in this subdivision by a statute passed by majority vote of each house thereof.  [¶] (4) As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.  [¶] (5) This subdivision shall not apply to a person convicted of selling, furnishing, administering, or giving, or offering to sell, furnish, administer, or give to a minor any methamphetamine-related drug or any precursors of methamphetamine unless the prior conviction was for a serious felony described in subparagraph (24) of subdivision (c) of Section 1192.7.  [¶] (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 felony 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).  [¶] (h) All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on June 30, 1993.  [¶] (i) If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.  [¶] (j) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.”

2.   The People's petition refers to Mr. Rodriguez under the name of Frank Mendoza.   This was the name used by Mr. Rodriguez when he lied to the police concerning his identity.

3.   Because we have resolved the petitions on the grounds set forth in the body of this opinion, we do not address other issues presented by the record in Mr. Rodriguez's case.   For example, the respondent court entered into a plea bargain with Mr. Rodriguez.   Under the terms of the agreement, in exchange for the guilty plea, the respondent court offered to strike the prior serious felony conviction and grant probation.   However, section 667, subdivision (g) states in part, “Prior felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7.”   We do not address the issue of whether the respondent court's offer violated the ban on plea bargaining set forth in section 667, subdivision (g).  (People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 533, 230 Cal.Rptr. 890;  People v. Superior Court (Ludwig) (1985) 174 Cal.App.3d 473, 475–476, 220 Cal.Rptr. 87.)   Further, we need not discuss the question of whether the respondent court could consider the fact the prior robbery conviction was sustained four years before the plea bargain in the present case was offered.   In Mr. Rodriguez's case, the respondent court indicated it was considering the passage of time between the prior robbery conviction and the current charges.  Section 667, subdivision (c)(3) states in part, “The length of time between the prior felony conviction and the current felony shall not affect the imposition of sentence.”

4.   Section 1385 states:  “(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.   The reasons for the dismissal must be set forth in an order entered upon the minutes.   No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.  [¶] (b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

5.   The same or similar language appears in:  reports prepared for the Assembly Committee on Public Safety for April 12, 1993, and January 6, 1994, hearings (see Rep. of Assem.Com. on Public Safety on Assem.Bill No. 971 (April 12, 1993) p. 2 (1993–1994 Reg.Sess.);   Rep. of Assem.Com. on Public Safety on Assem.Bill No. 971 (January 6, 1994) p. 2 (1993–1994 Reg.Sess.));   a report written for use by the full Assembly on January 26, 1994 (see Rep. prepared for third reading on Assem.Bill No. 971 (January 26, 1994) p. 2 (1993–1994 Reg.Sess.));   and a report prepared for the full Senate (See Sen.Rules Com., Office of Floor Analyses, 3d reading analysis of Assem.Bill No. 971 (1993–1994 Reg.Sess.) p. 2.)

6.   Article III, section 3 of the state Constitution states:  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”  Article VI, section 1 of the California Constitution provides in pertinent part, “The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts․”

7.   Section 1170.12 states in its entirety:  “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).”

8.   We reach the same conclusion concerning the effect of People v. Tenorio, supra, 3 Cal.3d at page 95, 89 Cal.Rptr. 249, 473 P.2d 993 and its progeny on section 1170.12, subdivision (d)(2) as we did in connection with section 667, subdivision (f)(2).   Since the power to strike a prior felony conviction pursuant to section 1385 which has been “pled and proved” (§ 1170.12, subd. (a)) for purposes of granting probation does not exist, section 1170.12, subdivision (d)(2) is inapplicable to the present case and does not implicate any separation of powers issue.

9.   Because we have concluded that section 1385 does not permit a trial judge to strike a finding concerning a prior serious felony conviction finding which has been “pled and proved” for purposes of granting probation to a felon who is a recidivist, we do not address the following questions:  the power of a trial court to strike a prior felony allegation over the prosecutor's objection for purposes of determining the duration of a defendant's sentence (§ 667, subds. (e)(1) and (2));  whether a trial judge can strike a prior conviction allegation before it has been “pled and proved” (§ 667, subd. (c)) for purposes of granting probation;  and the effect of People v. Tenorio, supra, 3 Cal.3d at page 95, 89 Cal.Rptr. 249, 473 P.2d 993 and its progeny on the purported power of the prosecutor only to control the judicial power to dismiss a prior serious or violent felony conviction allegation.

TURNER, Presiding Justice.

ARMSTRONG, J., concurs.