PEOPLE v. DONNELL

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Court of Appeal, Sixth District, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Monterey County, Respondent; John Lewis O'DONNELL, Real Party in Interest.

No. H013870.

Decided: November 30, 1995

Daniel E. Lungren, Attorney General of State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr. Assistant Attorney General, David S. Rose, Deputy Attorney General, Ronald S. Matthias, Deputy Attorney General, Gerald A. Engler, Deputy Attorney General, for Petitioner. No Appearance for Respondent. Sixth District Appellate Program, Deanna F. Lamb, Senior Staff Attorney, for Real Party in Interest.

In this writ proceeding, we are asked to determine whether a trial court may on its own motion and in the furtherance of justice dismiss or strike an admitted prior violent or serious felony conviction which, under the “three strikes” law 1 (Pen.Code, § 667, subds. (b)-(i)),2 would otherwise render a defendant ineligible for probation.  (See § 667, subd. (c)(2).)   Here, pursuant to section 1385, subdivision (a), the trial court struck the prior serious felony conviction alleged under section 667, subdivisions (d) and (e) and admitted by defendant.   The court then granted defendant probation.   The People objected to this sentence below.   Pursuant to section 1238, subdivision (d), they now seek writ review of the order granting probation on the ground that the trial court lacked the power to dismiss or strike defendant's prior serious felony conviction in the furtherance of justice “on its own motion” in light of express provisions of sections 667, subdivision (c)(2), which provides that if a defendant has been convicted of a prior violent or serious felony, probation for the current offense “shall not be granted.”

We first conclude, under section 667, subdivision (c) of the “three strikes” law, that once defendant's prior serious felony conviction had been “proved” (§ 667, subd. (c)) by defendant's admission, the trial court could not dismiss or strike that prior conviction pursuant to section 1385, subdivision (a).   We next conclude that, under section 667, subdivision (f)(2) of the same law, a trial court can dismiss or strike a prior violent or serious felony conviction allegation prior to its having been proved for insufficiency of the evidence or in the furtherance of justice, but that the trial court can exercise that discretion in the furtherance of justice only on the motion of the prosecuting attorney.   Finally, we conclude that such executive power over the trial court's exercise of its discretion to dismiss or strike an allegation of a prior felony conviction in the furtherance of justice for sentencing purposes violates the separation of powers clause of the California Constitution.  (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993;  Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

BACKGROUND

 Real Party in Interest, John Lewis O'Donnell (hereafter referred to as defendant), was charged by information with auto theft (Veh.Code, § 10851, subd. (a)).  The information alleged that defendant had suffered two prior convictions for auto theft (§ 666.5), had served three prior separate prison terms (§ 667.5, subd. (b)), and had suffered a prior serious felony conviction for burglary (§ 667, subds. (d) and (e)).   Defendant pleaded guilty to the substantive charge and admitted all additional allegations, including the prior serious felony conviction allegations which were alleged pursuant to section 667, subdivisions (d) and (e).3  At the time of his plea, the trial court indicated to defendant that “[i]n the event you're accepted in Delancey, ․ then I'll strike the (d) and (e) two strike allegations 4 , and suspend six years in state prison and give you a chance in Delancey Street․”  At the time of sentencing, the trial court struck the prior serious felony burglary conviction, suspended execution of a six-year prison term, and placed defendant on probation for three years upon condition, inter alia, that he enter the Delancey Street program.

DISCUSSION

Applicable Law

Section 1385, subdivision (a) provides, in pertinent part, that “[t]he 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.”   Before enactment of the “three strikes” law, the California Supreme Court concluded that subdivision (a) authorized a trial court to strike, set aside or dismiss a prior conviction at the time sentence is imposed on the current conviction.  (People v. Williams (1981) 30 Cal.3d 470, 478–479, 179 Cal.Rptr. 443, 637 P.2d 1029.)   In 1986, subdivision (b) was added to section 1385, and it provides that the trial court is not authorized to strike “any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”  (See Stats.1986, c. 85, § 2, eff. May 6, 1986.)

 The “three strikes” law, Assembly Bill 971, codified as section 667, subdivisions (b) through (i), initially was enacted as an urgency measure in March 1994.5  A subsequent initiative, Proposition 184, was passed by the voters in November 1994, and is codified as section 1170.12.   In conjunction with the “three strikes” law and the accompanying initiative measure, the Legislature and the voters expressed their intent to “ensure longer prison sentences and greater punishment” for recidivists with prior violent or serious felonies.  (§ 667, subd. (b);  Cal. Ballot Pamphlet, General Election, Nov. 8, 1994, Prop. 184, Text of Proposed Law, p. 64.)

Although the People cite as grounds for relief the superior court's error in granting probation contrary to both the express provisions of sections 667, subdivision (c)(2) and the provisions of section 1170.12, subdivision (a)(2), they concede that “this case arose under the legislative statute,” that they choose to “focus[ ]” their “discussion” on section 667, that their “analysis is fundamentally the same as to sections 667 and 1170.12,” and that “[t]he outcome should likewise be the same under either provision.”   Because defendant was sentenced under the provisions of section 667, subdivisions (b) through (i), we do not address the effect of Proposition 184, which essentially enacted the same “three strikes” law as section 667.

The issues in this case arise from the provisions of the “three strikes” law contained in subdivisions (c), (e) and (f) of section 667.

Section 667, subdivision (c) provides in pertinent part:  “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) [violent or serious], the court shall adhere to the following:  ․ [¶] (2) Probation for the current offense shall not be granted, nor shall execution or imposition of sentence be suspended for any prior offense.”

Subdivision (e)(1) provides in pertinent part that “[i]f a defendant has one prior [violent or serious] felony conviction that has been pled and proved, the determinate term ․ shall be twice the term otherwise provided as punishment for the current felony conviction.”

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)” and that “[t]he prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).”

Subdivision (f)(2) provides that “[t]he prosecuting attorney may move to dismiss or strike a prior [violent or serious] 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 [violent or serious] felony conviction, the court may dismiss or strike the allegation.”

Limitations on the Trial Court's Power to Dismiss or Strike a Proven Prior Violent or Serious Felony Conviction under the “Three Strikes” Law

The People contend that the “three strikes” law has left the trial court with no discretion to grant probation to a defendant who has suffered a prior violent or serious felony conviction.   They argue that section 1385, subdivision (a) does not “permit[ ] a judge to override the probation bar of section 667, subdivision (c)(2), by striking or dismissing the very prior (or priors) which trigger the bar.”

 In analyzing the People's argument, we first consider whether section 1385, subdivision (b) applies to a prior violent or serious felony conviction within the meaning of sections 667, subdivisions (b) through (i).

Although the People do not rely upon the argument exclusively, they do contend that, because the Legislature placed the provisions of the “three strikes” law in section 667, the trial court was precluded from striking defendant's prior burglary conviction.   We are not persuaded that the People's claim that placement of Assembly Bill 971 “entirely within section 667” evinces “the Legislature's intent to preclude use of section 1385[ (a) ] to strike priors alleged pursuant to [the ‘three strikes' law].”

Section 1385, subdivision (b) provides:  “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”   However, that limiting provision which refers to “enhancement” does not apply to the term or base term prescribed as punishment for the underlying offense.   Quoting from the California Rules of Court, rule 405(c), the California Supreme Court in People v. Hernandez (1988) 46 Cal.3d 194, 249 Cal.Rptr. 850, 757 P.2d 1013, explained that an enhancement “ ‘means an additional term of imprisonment added to the base term’ ” (id., at p. 207, 249 Cal.Rptr. 850, 757 P.2d 1013) while, under the Determinate Sentencing Act, a separate offense base term often involves “a choice among three possible terms prescribed by statute.”  (Ibid.)  While an enhancement is often “characterized by a ‘focus on the element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves, ․’ ”  (People v. Martin (1995) 32 Cal.App.4th 656, 667, 38 Cal.Rptr.2d 776), not every statute which increases the punishment for recidivist conduct is an enhancement.   For example, section 667.7, which defines the penalty for the specified current offenses where defendant has suffered two or more prior convictions for those offenses “speaks not of enhancement but of a separate term of imprisonment for recidivist conduct.”   (People v. Skeirik (1991) 229 Cal.App.3d 444, 466, 280 Cal.Rptr. 175.)

Other examples of enhancements and base terms can be found within the statutory scheme of section 667 itself.   For example, section 667, subdivision (a) 6 is an enhancement provision.   It contains the word “enhancement” and provides punishment in “addition” to the sentence for the current offense, and our Supreme Court has noted that “[w]hile no magic words need be used to identify an enhancement, ․ many enhancement statutes in fact use the word ‘enhancement’ [citations], while others refer to imposition of an ‘additional term.’  [Citations.]”  (People v. Hernandez, supra, 46 Cal.3d at p. 207, fn. 15, 249 Cal.Rptr. 850, 757 P.2d 1013.)   On the other hand, section 667, subdivision (e)(1), which also is part of the “three strikes” law, sets forth the term of a defendant's sentence when such defendant “has one prior [specified] felony conviction that has been pled and proved,” and thus defines a term of punishment rather than providing for added punishment or an enhancement.

The argument that all of the present section 667 must be an enhancement because section 1170.1, subdivision (a) includes section 667 within its listing of enhancement laws was rejected in People v. Martin, supra, 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776.  Section 667 was added to the list in section 1170.1, subdivision (a) before the “three strikes” law was included in section 667, and we agree with the court in Martin that “[i]t would be a perverse reading of the law to conclude that by not amending section 1170.1, subdivision (a) the Legislature intended the reference to section 667 in that provision to characterize the entire new [‘three strikes'] statute as an enhancement.”  (Id., at p. 668, 38 Cal.Rptr.2d 776.)

We determine that the punishment set forth under sections 667 subdivisions (b) through (i) is not an “enhancement” within the meaning of section 1385, subdivision (b), and we therefore conclude that subdivision (b) of section 1385 does not prohibit dismissing defendant's prior serious felony conviction or “strike” for the purpose of imposing defendant's punishment for the current offense.

 We next consider whether, once the prior serious felony conviction allegation had been “proved” by defendant's admission, the trial court was prohibited from dismissing or striking that proven prior conviction in order to render defendant eligible for probation.   In concluding the trial court was prohibited from striking the proven prior serious felony conviction in order to grant defendant probation, we first note that “absent a clear expression of legislative intent ․, a sentencing statute will not be construed to abrogate a trial court's general section 1385 power to strike.”   (People v. Fritz (1985) 40 Cal.3d 227, 230, 219 Cal.Rptr. 460, 707 P.2d 833.)   We next note that the Supreme Court has clarified that “it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”  (People v. Thomas (1992) 4 Cal.4th 206, 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   Here, although section 1385, subdivision (a) is not cited in section 667, subdivision (c), the introductory phrase “[n]otwithstanding any other law” reflects “with unmistakable clarity” (People v. Superior Court (1968) 69 Cal.2d 491, 503, 72 Cal.Rptr. 330, 446 P.2d 138) the Legislature's intent to eliminate section 1385, subdivision (a) discretion with regard to subdivisions (c)(1) through (c)(8) of section 667 after a prior serious felony conviction has been “pled and proved.”  (§ 667, subd. (c).)

In light of the above analysis, we conclude the trial court in this case had no power to strike defendant's proven prior serious felony conviction in order to render defendant eligible for probation and that it erred by doing so.

Plea Limitations

 The trial court's error was made in an attempt to fulfill its promise that, if accepted by the Delancey Street program, defendant would be granted probation.7  Given that defendant's agreement to plead guilty and to admit the prior allegation was conditioned in part upon the fact that, if defendant were accepted by the Delancey program, the court would then strike the prior conviction at sentencing to render defendant eligible for probation, defendant gave up something to which he was entitled, namely a trial, based upon a condition that could not be fulfilled.8  As in People v. Sanders (1987) 191 Cal.App.3d 79, 236 Cal.Rptr. 197, a case in which an amendment to a count violated a jury trial waiver agreement, resolution of defendant's case “may be found in an analogy to cases considering specific performance of plea bargains.”  (Id., at p. 85, 236 Cal.Rptr. 197.)   Here, as in the plea bargain context, “ ‘[d]efendant's entitlement to the benefit of his [agreement] cannot be predicated on the assumption that violation of the [agreement] must result in some measurable detriment.   Because a court can only speculate why a defendant would negotiate for a particular term of [an agreement to plea guilty and thereby waive his right to trial], implementation should not be contingent on others' assessment of the value of the term to defendant.’  (People v. Mancheno (1982) 32 Cal.3d 855, 865[, 187 Cal.Rptr. 441, 654 P.2d 211].)”  (People v. Sanders, supra, 191 Cal.App.3d at p. 87, 236 Cal.Rptr. 197.)   Any distinction between the “breach [ed]” plea bargain cases and the situation here whether defendant waived trial and entered a plea is “without a meaningful difference.”  (Id., at p. 86, 236 Cal.Rptr. 197.)   Analogizing to the traditional plea bargain context, we conclude that the appropriate remedy in this case is to unwind the agreement with the court and return all parties to the status quo ante the plea to the charge and admission of the prior serious felony allegations by reviving the stricken allegations and returning the matter to the trial court for further proceedings.  (See In re Sutherland (1972) 6 Cal.3d 666, 671–672, 100 Cal.Rptr. 129, 493 P.2d 857;  People v. Schuler (1977) 76 Cal.App.3d 324, 331, 142 Cal.Rptr. 798.)

Post–Writ Considerations and Separation of Powers Doctrine

 Finally, we consider whether, upon return of the matter to the trial court, the court would be prohibited from dismissing or striking defendant's prior serious felony conviction allegations in the furtherance of justice.   In so doing, we must construe subdivision (f)(2) of section 667.   As we discuss below, if subdivision (f)(2) permits the trial court to dismiss or strike a prior conviction allegation in the furtherance of justice only on the motion of the prosecutor, that provision violates the separation of powers clause of the California Constitution.   While we agree that “[s]tatutes are to be so construed, if their language permits, as to render them valid and constitutional rather than invalid and unconstitutional” (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334), we conclude that the language of section 667, subdivision (f)(2) cannot be construed to render it valid and constitutional because, in enacting section 667, subdivision (f)(2), the Legislature clearly evinced an intent to prohibit the trial court from dismissing or striking a prior felony conviction allegation on its own motion in the furtherance of justice while permitting it to dismiss or strike a prior conviction allegation in the furtherance of justice upon motion of the prosecutor.

 “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]  In order to determine this intent, we begin by examining the language of the statute.  [Citations.]  But ․ intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citation.]  Finally, we do not construe statutes in isolation, but rather read every statute with reference to the entire scheme of law of which it is part․”  (People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  internal quotation marks omitted.)

Section 667, subdivision (f)(2) specifically authorizes the prosecutor to move to dismiss or strike a prior violent or serious felony conviction allegation if there is insufficient evidence to prove the prior conviction or “in the furtherance of justice pursuant to Section 1385.”   The next sentence of the subdivision specifically authorizes the court to dismiss or strike the allegation “upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction․”  The subdivision thereby grants the court the power to dismiss or strike a prior violent or serious conviction allegation on its own motion if the court finds insufficient evidence to prove such a conviction.   We conclude that in specifically authorizing the court to dismiss or strike the allegation on its own motion only for insufficiency of the evidence while simultaneously allowing the prosecutor to move to dismiss or strike the allegation for either insufficiency of the evidence or in the furtherance of justice, the Legislature evinced its clear intent to restrict the power of the judiciary.   It would be “highly unlikely the Legislature” (People v. Thomas, supra, 4 Cal.4th at p. 213, 14 Cal.Rptr.2d 174, 841 P.2d 159), in enacting a measure to ensure longer prison sentences and greater punishment for those with serious and/or violent felony priors, “intended nonetheless to preserve broad judicial authority under section 1385 to strike [those very serious and/or violent felony priors on the court's own motion]․”  (People v. Thomas, supra, 4 Cal.4th at p. 213, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   To so construe sections 667, subdivision (f)(2) “ ‘ “would result in ․ consequences which the Legislature did not intend.” ’ ”  (Id., at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

On the other hand, to construe (f)(2) literally as authorizing the court to dismiss only for insufficiency of the evidence would also result in consequences not intended by the Legislature;  the court's power to grant a motion to dismiss a prior violent or serious felony allegation in the furtherance of justice upon motion of the prosecutor must be implied because, otherwise, the Legislature's authorization of such a motion by the prosecutor would be nugatory.   We are convinced that in enacting the “three strikes” law, the Legislature intended the prosecutor to charge all relevant prior violent or serious felony conviction allegations and to be required to move in open court to dismiss or strike whichever of those allegations the prosecutor decided not to pursue in the furtherance of justice.  (See, § 667, subd. (f)(1).)   We are similarly convinced that the Legislature intended to limit the trial court's authority to dismiss or strike such allegations in the furtherance of justice by authorizing such dismissals only upon motion of the prosecutor.

We therefore conclude that, when sentencing under the “three strikes” law set forth in section 667, subdivisions (b) through (i), subdivision (f)(2) authorizes the trial court discretion to dismiss a prior violent or serious felony conviction allegation in the furtherance of justice pursuant to section 1385, but only upon motion and approval of the prosecuting attorney.

Article III, section 3 of the California Constitution provides that “[t]he powers of state government are legislative, executive, and judicial” and that “[p]ersons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”

The Legislature may enact a specific sentencing statute which overrides the trial court's general power under section 1385 to strike prior convictions in the furtherance of justice.   For example, in People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328, the Supreme Court construed and found valid a statutory amendment prohibiting the grant of probation to anyone who used a firearm in the commission of specified felonies because that statute overrode the general power under section 1385, particularly in light of legislative history which evinced an intent to deny probation without any “exception [for] the interest of justice․”  (Id., at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)

Here, however, unlike the legislation considered in Tanner, section 667, subdivision (f)(2) does not purport to limit “without any exception” the trial court's power to dismiss or strike a prior violent or serious felony conviction allegation in “the interests of justice.”

 Section 667, subdivision (f)(2) gives the prosecution the right to “move” to dismiss or strike a prior violent or serious felony conviction allegation “in the furtherance of justice pursuant to section 1385.”   As noted above, although subdivision (f)(2) literally authorizes the court to dismiss only for insufficiency of the evidence, the trial court impliedly retains the power to exercise its judicial power to dismiss or strike a prior violent or serious felony conviction allegation in the furtherance of justice, albeit only upon the prosecutor's motion.

Therefore, section 667, subdivision (f)(2) permits the trial court to strike prior violent or serious felony conviction allegations in the furtherance of justice only upon approval and motion of the prosecutor.   Since subdivision (f)(2) confers upon the prosecution an implied veto power over a trial court's exercise of its sentencing discretion, it violates the separation of powers clause of the California Constitution under the authority of People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.   (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

In Tenorio, the defendant was convicted of possession of marijuana and admitted a prior conviction for the same offense.   At the time, the statute in question provided “no minimum term in the absence of a prior, but impose[d] mandatory minimum terms of two and five years for convictions with one and two or more priors respectively.”  (3 Cal.3d, at p. 90–91, 89 Cal.Rptr. 249, 473 P.2d 993.)   The trial court dismissed the allegation 9 of the prior conviction without prior approval of the prosecutor, in violation of Health and Safety Code section 11718, which, at the time, required a motion by the district attorney before a trial court could exercise its power to strike prior conviction allegations.   In the relevant period in question, the section provided that no prior conviction affecting the sentence for the current offense “ ‘may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.’ ”  (Id., at p. 91, 89 Cal.Rptr. 249, 473 P.2d 993.)

In an earlier decision, People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, a four-member majority rejected a separation of powers argument regarding Health and Safety Code section 11718.   The court in Tenorio came to a contrary conclusion, holding that the dissenting opinion in Sidener was the better reasoned.   In so doing, it summarized the reasoning in Justice Schauer's dissent, noting his contention that “because section 11718 itself implies the existence of the judicial power to grant a motion to strike priors (albeit on the prosecutor's motion only), ․ section 11718 constituted an invasion of [the judicial] power [to strike priors] because it grants to the prosecutor the unreviewable power to grant or to prevent a judicial resolution of a motion to strike priors, and because ‘Constitutional jurisdiction of the court to act cannot be turned on and off at the whimsy of either the district attorney or the Legislature.   The power to act under our system of government means the power of an independent court to exercise its judicial discretion, not to servilely wait on the pleasure of the executive.’  (58 Cal.2d at p. 654, 25 Cal.Rptr. 697, 375 P.2d 641.)”   (People v. Tenorio, supra, 3 Cal.3d at p. 93, 89 Cal.Rptr. 249, 473 P.2d 993.)   The Tenorio court then held that the statute unconstitutionally authorized the executive branch of state government to invade the province of the judicial branch “because it grants to the prosecutor the unreviewable power to grant or prevent a judicial resolution of a motion to strike priors” (ibid.) and because “analogies to judicial sentencing discretion ․ cannot justify vesting a partial advocate, the prosecutor, the power to prevent the exercise of ․ judicial discretion․”  (Id., at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)

Here, analogous with the version of Health and Safety Code section 11718 reviewed by Tenorio, section 667, subdivision (f)(2) “itself implies the existence of the judicial power to grant a motion to strike [allegations of violent or serious] priors [in the furtherance of justice] (albeit on the prosecutor's motion only)․”  (3 Cal.3d at p. 93, 89 Cal.Rptr. 249, 473 P.2d 993.)

As in Tenorio, the section in question here “itself recognizes that the dismissal power [in the furtherance of justice] is still exercised by the court, but purports to condition that exercise upon a prosecutor's prior approval.”   Thus, “even if the Legislature could constitutionally remove the power to strike [allegations of violent or serious] priors from the courts, it has not done so, but rather has purported to vest in the prosecutor the power to foreclose the exercise of an admittedly judicial power by an appropriate judicial officer.   It is no answer to suggest that this is but a lesser included portion of the prosecutor's discretion to forgo prosecution, as the decision to forgo prosecution does not itself deprive persons of liberty.”   (3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

It is also no answer that, because the “three strikes” law imposes restrictions on the prosecutor's discretion to charge prior violent or serious convictions (see § 667, subd. (g)) and requires court approval for dismissal of a prior conviction allegation, there has been no unconstitutional restriction of judicial power.   Neither fact affects the underpinnings of Tenorio, including its conclusions that “[w]hen the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature” and that that judicial power “is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor.”  (3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   Moreover, once we assume the trial court here is powerless to dismiss except upon motion by the prosecutor, it becomes clear that the prosecutor retains the “arbitrary” and “unreviewable” discretion whether to move for dismissal found to have been improperly vested in the prosecutor in the statute reviewed by the court in Tenorio.  (Id., at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)

The People concede that “[t]he priors must be charged, but the prosecutor retains discretion to abandon those priors in accordance with subdivision (f)(2).”   As noted above, subdivision (f)(2) permits the prosecution to move to dismiss prior violent or serious conviction allegations in the furtherance of justice.   Section (f)(2) therefore evinces a legislative intent to permit judges to grant prosecutorial motions to dismiss or strike prior serious or violent felony conviction allegations whenever such a motion would further the interests of justice.   Section (f)(2) applies only to situations in which the prosecuting attorney believes a prior allegation should be stricken and the trial court agrees.   The fact the Legislature included subdivision (f)(2) in section 667 and also limited the application of subdivision (c)(2) of section 667 to situations in which the prior conviction has been “proved” provides additional support to our conclusion that the Legislature did not intend to absolutely foreclose the power to dismiss or strike prior serious or violent felony conviction allegations when such action would result in the ability to grant probation to an otherwise ineligible defendant.   Therefore, while subdivision (c) of the “three strikes” law may evince an intent to forbid the grant of probation to prove second or third strike felons, subdivision (f)(2) impliedly authorizes the prosecution to have veto power of the trial court's discretion to grant probation by dismissing a prior allegation in the furtherance of justice.   It is the operation of the latter subdivision and its unconstitutional creation of executive power restricting the power of the judiciary which breaches the separation of powers doctrine.

 Finally, citing People v. Thomas, supra, 4 Cal.4th at p. 208, 14 Cal.Rptr.2d 174, 841 P.2d 159, People v. Tanner, supra, 24 Cal.3d at pp. 520–521, 156 Cal.Rptr. 450, 596 P.2d 328, and People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180, the People claim we need not rely upon Tenorio because “[s]ince Tenorio the Legislature and the electorate have repeatedly applied the rule that judicial discretion under section 1385 may be curtailed.”   However, we disagree with the People's claim that “Tanner and its progeny govern the present case.”   We find the People's reliance upon the Tanner line of cases misplaced, for none of the statutes considered in the cases relied upon by the People involve a prosecutorial veto over a trial court's discretion to dismiss under section 1385, subdivision (a).   Only the Tenorio case deals directly with a statute analogous to the statute under consideration here, namely, a statute in which the authorization of dismissals in the furtherance of justice is restricted by the requirement that the court obtain the prosecutor's concurrence prior to granting such a dismissal.   The Legislature cannot condition the judicial power to grant a dismissal upon approval by the executive branch.  (See People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993;  see also Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)

Under Tenorio, we are bound to find that section 667, subdivision (f)(2) violates the California constitutional separation of powers doctrine because a prosecutor cannot be vested with power to foreclose the exercise of a judicial power impliedly recognized in section 667, subdivision (f)(2) itself.  (People v. Tenorio, supra, 3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993;  Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

 The People suggest that, assuming subdivision (f)(2) violates the separation of powers doctrine, “the remedy would not be to grant trial courts the power to strike priors” because the subdivision “can be removed without touching on the probation bar set forth in subdivision (c), and therefore cannot invalidate that bar.  [Citation.]”  We disagree.  “[I]t is clear from the [Tanner ] opinion that the mere use of mandatory language in the statute does not indicate that section 1385 is inapplicable.”  (People v. Williams, supra, 30 Cal.3d at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029.)   Here, apart from the provision of subdivision (f)(2), the “three strikes” law makes no reference to the trial court's power to dismiss prior conviction allegations in the furtherance of justice, but subdivision (f)(2) impliedly authorizes such power, albeit upon approval of the prosecutor.   We cannot presume a specific legislative intent to completely eliminate the trial court's dismissal powers where the subdivision we invalidate impliedly authorizes such power.

DISPOSITION

The People's petition for writ of mandate is granted and the writ is issued, ordering the superior court to vacate its judgment and restore all counts and allegations originally charged against defendant to the superior court calendar to be either tried or disposed of in some other appropriate manner.   The superior court shall conduct further proceedings in accordance with the views expressed herein.

FOOTNOTES

1.   We are aware that an analogous issue is pending before the California Supreme Court in People v. Superior Court (Romero), 40 Cal.Rptr.2d 308, 892 P.2d 804 review granted April 13, 1995.   The issue before the court in Romero is whether a trial court may on its own motion and in furtherance of justice dismiss or strike allegations of prior violent or serious felony convictions which, under the “three strikes” law, otherwise require imposition of an indeterminate sentence of at least 25 years to life.  (See § 667, subds. (f)(2), (e)(2)(A) and § 1170.12, subd. (c)(2)(A).)

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

3.   We summarily reject defendant's contention that his 1988 conviction for residential burglary does not qualify as a prior “strike” because subdivision (d)(1) of the “three strikes” statute (§ 667) only applies to felonies committed after its enactment in March 1994.   We agree with those courts which have concluded that subdivision (d)(1), when construed in context, “does not require the ‘strike’ determination to be made at the time of the prior conviction and thus permits application of the Three Strikes law to convictions predating its enactment․”  (People v. Reed (1995) 33 Cal.App.4th 1608, 1611, 40 Cal.Rptr.2d 47;  see also People v. Green (1995) 36 Cal.App.4th 280, 42 Cal.Rptr.2d 249;  People v. Sipe (1995) 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266.)

4.   As will become apparent in our subsequent discussion, we believe the trial court's reference to “allegations” was a misuse of that term in the context of section 667, subdivisions (c) and (f).   Here, once defendant admitted the prior serious felony conviction allegation, the prior conviction must be treated as “pled and proved” under section 667, subdivision (c), rather than as a “prior [serious] felony conviction allegation” within the meaning of section 667, subdivision (f)(2).

5.   Defendant's contention to the contrary, the “three strikes” law does not make such substantial changes to the existing duties of prosecutors or judges as to violate the constitutional limitation on urgency legislation.  (See People v. Robertson (1982) 33 Cal.3d 21, 45–47, 188 Cal.Rptr. 77, 655 P.2d 279.)

6.   Section 667, subdivision (a)(1) provides, in relevant part, that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state ․ shall receive ․, a five-year enhancement for each such prior conviction․”

7.   Defendant demurs to the People's petition on the ground that “the People agreed to a plea bargain which contemplated that the court would strike the allegation” and that “[t]he striking of the allegation was within the court's jurisdiction and power to act based on the People's agreement to the plea bargain and their failure to object or oppose in any way the guilty plea agreement.”   However, having reviewed the exhibits before us, we agree with the People that “[t]he prosecutor neither agreed to dismiss or reduce any of the charges or [prior] allegations nor agreed to any particular sentence in exchange for defendant's plea.”   Prior to accepting the change of plea, the court advised defendant that “the District Attorney is fairly clear that they think based upon your past record and this offense that you should go to prison”;  at sentencing, the People objected to the court striking the prior serious felony conviction allegation, arguing that defendant was ineligible for probation and “must be committed to state prison” as a “two-strike” felon.   The People are not foreclosed from seeking review of the order granting probation on the ground that they either agreed to such a sentence or failed to object to it.

8.   Not only could the condition not be fulfilled because the court had no power to strike defendant's proven prior serious felony conviction in order to render defendant eligible for probation, but it appears the court's underlying promise itself may have run afoul of section 667, subdivision (g)'s prohibition against using prior felony convictions in plea bargaining, as that term is defined in section 1192.7, subdivision (b).   Because the People have not discussed or relied upon section 667, subdivision (g) in this case, we similarly choose not to rely upon it as a basis for issuing the writ.

9.   The Tenorio Court uses the word “allegation” to encompass an allegation in the pleading as well as a finding of a prior conviction after proof by trial or admission.   In the context of section 667, the word “allegation” takes on more narrow meaning in light of the fact that section 667 treats allegations in the pleading different than prior convictions which have been “pled and proved.”  (See § 667, subds. (c), (e), (f), and (g).)

COTTLE, Presiding Justice.

PREMO and ELIA, JJ., concur.