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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Paul COMAUEX, Defendant and Respondent.

No. C019500.

Decided: April 25, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe, Janet E. Neeley and Judy Kaida, Deputy Attorneys General, for Plaintiff and Appellant. Central California Appellate Program, under appointment by the Court of Appeal, Hardesty & Moore, John Hardesty and Anne V. Moore, for Defendant and Respondent.

Under the new so-called “three strikes” law (Stats.1994, ch. 12, §§ 1–2, enacted effective March 7, 1994), a defendant who is convicted of a felony and who has a prior qualifying prior felony conviction or “strike” that has been pled and proved, may not be granted probation.  (Pen.Code, § 667, subd. (c)(2).)   In this case, after the prior conviction had been pled and proved, the trial court granted defendant's motion to strike it and granted defendant probation.   Because the “three strikes” law clearly prohibits just this action, we vacate the dismissal of the prior felony conviction and remand for resentencing.


Defendant pled nolo contendere to residential burglary (Pen.Code, § 459;  all further undesignated statutory references are to the Penal Code) and was granted probation with 270 days jail time as a condition.   He was ordered to report to the jail on January 18, 1994.   Defendant failed to report and was arrested in March.   The court ordered him to serve an additional 95 days consecutive to the 270 days originally imposed as a condition of probation.

On March 15, 1994, while serving the modified jail term, defendant walked away from an honor farm.   An arrest warrant was issued.   Defendant contacted his probation officer on April 4 and said he would surrender the next day.   He did not report as promised, but surrendered on April 6.

Defendant was charged with escape (§ 4532, subd. (b)).  Defendant's burglary conviction was alleged as a prior serious felony conviction or “strike” under section 667, subdivision (d).   At the preliminary hearing, the magistrate denied defendant's motion to reduce the escape charge to a misdemeanor under section 17, subdivision (b).

Defendant waived a jury trial.   Defendant moved in the trial court to reduce the offense to a misdemeanor, and the motion was again denied.   Defendant then moved to strike the prior felony conviction.

After evidence establishing both the escape and the prior conviction was introduced, the court found defendant guilty of escape.   The court also found the prior true.1

The probation report recommended giving defendant a second chance on probation.   At sentencing, the prosecutor argued the court did not have authority to strike the prior.   The court disagreed:  “I think I have discretion to strike the prior in this situation.   This was a walk-away where they forgot to lock the front door of the jail and he turned himself in 15 days later, there was no criminal activity within those 15 days, and I'm not going to send the guy to prison for walking away and then surrendering 15 days later with no interim criminal activity.”

The court struck the prior and granted defendant probation, with the condition he serve six months in jail consecutive to his current term.   In response to the prosecutor's question, the court stated it had authority to strike the prior under section 1385.

The People appeal.  (§ 1238, subd. (a)(1).)


 Subdivision (c)(2) of section 667 provides:  “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.”

Here, it had been pled and proved that defendant had a qualifying prior felony conviction.   The question is whether the trial court could avoid the mandatory provisions of subdivision (c)(2) by using section 1385 to strike the prior conviction.   The answer is no.

Subdivision (a) of section 1385 provides in part:  “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.”   This power includes the power to dismiss or strike the charge of a prior conviction.  (People v. Thomas (1992) 4 Cal.4th 206, 209, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. Burke (1956) 47 Cal.2d 45, 51, 301 P.2d 241.)   The court has the power under section 1385 to strike the prior conviction unless the Legislature clearly evinces a contrary intent.  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)

In People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the court considered whether a trial court could dismiss an allegation of firearm use in light of the mandatory provision of section 1203.06 that probation could not be granted to one who used a firearm in the commission of certain offenses.   At that time, section 1203.06 provided in part:  “Notwithstanding ․ Section 1203:  (a) Probation shall not be granted to ․ (1) [a]ny person who used a firearm during the commission ․ of any of the following crimes:  ․” (Stats.1975, ch. 1004, § 2, p. 2357.)   The high court found a trial court could not use the section 1385 power to dismiss to evade the mandatory provisions of section 1203.06.  (Id. at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328;  see also People v. Rodriguez (1986) 42 Cal.3d 1005, 1018–1019, 232 Cal.Rptr. 132, 728 P.2d 202.)

Identical mandatory language prohibiting probation in section 1203.07 was found sufficient to eliminate the trial court's power under section 1385 to strike a prior conviction and grant a defendant probation.  (People v. McGuire (1993) 14 Cal.App.4th 687, 693, 18 Cal.Rptr.2d 12;  People v. Enriquez (1985) 173 Cal.App.3d 990, 994–995, 219 Cal.Rptr. 325.)

Section 1203.065 prohibits probation upon conviction of certain sex crimes.   In People v. Hesslink (1985) 167 Cal.App.3d 781, 213 Cal.Rptr. 465, the court considered whether section 1385 gave a trial court authority to grant probation.   The court reviewed the language of section 1203.065, subdivision (a), as it then read, “Notwithstanding any other ․ law, probation shall not be granted․”  It found this language was broader and more inclusive than the language “notwithstanding the provisions of section 1203,” used in other sections and foreclosed application of section 1385.  (Id. at p. 793, 213 Cal.Rptr. 465.)

 Following these cases, the language in subdivision (c)(2) prohibiting the grant of probation “notwithstanding any other law,” standing alone, must be read to prohibit a trial court from exercising the power to dismiss under section 1385 to evade the mandatory language prohibiting probation.   The meaning of a statute, however, may not be determined from a single phrase or sentence;  instead, we must construe the entire statute in context to determine the legislative intent.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

A review of the remaining provisions of the “three strikes” law only reinforces the legislative intent that application of section 667, subdivision (c)(2) is mandatory and section 1385 may not be used to evade its mandatory application.   Subdivision (b) of section 667 states the legislative intent is “to ensure longer prison sentences and greater punishment.”   Subdivision (c) imposes mandatory sentencing provisions “notwithstanding any other law.”   Subdivision (d) defines qualifying prior felony convictions “notwithstanding any other law.”   Subdivision (e) provides the sentences that “shall apply” where a defendant has a felony conviction and one or more prior felony convictions that have been pled and proved.   Subdivision (f)(1) provides:  “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).”   Prior felony convictions may not be used in plea bargaining, except as provided in subdivision (f)(2).  (§ 667, subd. (g).)

Subdivision (f)(2) of section 667 addresses when an allegation of a prior felony conviction may be dismissed.   It provides:  “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”   This provision speaks only to a prior felony conviction allegation.   This reference to a prior felony conviction “allegation” stands in stark contrast to the reference to a prior felony conviction that has “been pled and proved” in subdivisions (c) and (e).   To the extent subdivision (f)(2) preserves any discretion in the court to dismiss under section 1385, such discretion may be applied only to an allegation of a prior felony conviction.

The legislative intent is clear.   The district attorney is required to plead and prove all prior felony convictions, and the trial court has no sentencing discretion to strike or dismiss a prior conviction that has been proved.   Here, the trial court struck a prior felony conviction after it had been “pled and proved” and then granted defendant probation.   Under the “three strikes” law, the trial court had no such authority.


The order of the trial court dismissing the prior conviction, suspending imposition of sentence, and placing defendant on probation is set aside.   The matter is remanded for resentencing in accordance with section 667, subdivision (e)(1).


1.   There is a conflict between the clerk's minutes and the reporter's transcript on this point.   The clerk's minutes indicate the court made no finding on the prior conviction.   In the circumstances of this case, we find the reporter's transcript more reliable on this point.   (See People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal.Rptr. 862, 659 P.2d 1152.)

MORRISON, Associate Justice.

PUGLIA, P.J., and SIMS, J., concur.