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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Appellant, v. Thomas DREW, Defendant and Respondent.

No. B089318.

Decided: November 30, 1995

Gil Garcetti, District Attorney of Los Angeles County, George M. Palmer, Acting Head Deputy District Attorney, and Shirley S.N. Sun, Deputy District Attorney, for Plaintiff and Appellant. Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Alex Ricciardulli, Debra Tocalino, and Tracy A. Mooney, Deputy Public Defenders, for Defendant and Respondent.

In this “three strikes” case (Pen.Code,1 §§ 667, subds. (b)–(i)) we conclude:  (1) a trial court has no authority, on its own motion, to dismiss a qualifying “prior” (§ 667, subds. (b)–(i)) in the interest of justice (§ 1385, subd. (b));  (2) the absence of such power is not a violation of the separation of powers doctrine;  and (3) in this case, a 25–years–to–life sentence is not “cruel or unusual punishment.”  (Cal. Const., art. I, § 17.)

We vacate the sentence, remand, and provide resentencing guidelines to the trial court.


On Sunday, May 15, 1994, about 8:30 a.m., City of Bell Police Sargeant Reed was called to Carl's Jr. restaurant.   Upon arriving he saw respondent inside the restaurant, on the floor by a table, lying on his side, apparently asleep.   An attache case was under his right side.   With some difficulty, Sargeant Reed roused respondent and with the assistance of another officer stood respondent up.

Sargeant Reed, a narcotics expert, concluded respondent was under the influence of an opiate.

Respondent was arrested.   In his possession police found a hypodermic needle, spoon, and 13 codeine tablets.

Respondent was charged 2 with possession of codeine (Health & Saf.Code, § 11350) and alleged to have suffered four felony convictions:  (1) burglary, case no. VA014409, on April 20, 1992, a state prison prior (§ 667.5);  (2) burglary, case no. VA003984, on August 1, 1990, a state prison prior (§ 667.5);  (3) attempted murder, case no. 534992, on December 4, 1985, a “prior conviction ․ or juvenile adjudication ” (§§ 667, subds. (b)–(i));  and (4) attempted robbery, case no. A534992, on December 4, 1985, a “prior conviction ․ or juvenile adjudication. ”  (§§ 667, subds. (b)–(i);  italics added.)

In a bifurcated trial, a jury found respondent guilty and then found true the four priors, as alleged.

At the sentence hearing, over the People's objection, the trial court “struck” the attempted robbery “prior” in the interest of justice (§ 1385, subd. (a)) and then “converted” it into a state prison prior (§ 667.5).   The trial court then imposed the upper three-year term for possession of codeine (Health & Saf.Code, § 11350, subd. (a);  § 18), doubled it (§ 667, subd. (e)), and added one year, consecutive, for each of the (now) three “state prison” priors (§ 667.5) for a total sentence of nine years.

The People have appealed from the imposition of an unlawful sentence (§ 1238, subd. (a)(10)).


1. A trial court has no authority, on its own motion, to dismiss a qualifying “prior” (§ 667, subds. (b)–(i)) in the interest of justice (§ 1385, subd. (b)).3

 As we recently held in People v. Campos (1995) 38 Cal.App.4th 1669, 1674, 45 Cal.Rptr.2d 706:  a trial court has no authority, on its own motion, to dismiss a qualifying “prior” (§ 667, subds. (b)–(i)) in the interest of justice (§ 1385, subd. (b)).

Prior to the enactment of “three strikes,” trial courts did not have authority to dismiss “serious priors” in furtherance of justice.   That authority had been totally removed in 1986 by the enactment of section 1385, subdivision (b).   The enactment was held valid by People v. Valencia (1989) 207 Cal.App.3d 1042, 255 Cal.Rptr. 180.

“Three strikes” did not confer authority, to either the trial court or the prosecutor.   It restricted the authority of both.

It restricted the trial court's authority to grant probation (subd. (c)(2)), order diversion (subd. (c)(4)), make narcotic rehabilitation commitments (subd. (c)(4)), sentence concurrently (subds. (c)(6), (7) and (8)), or engage in plea bargaining (subd. (g)).

It restricted the prosecutor's authority to engage in plea bargaining (subd. (g)) and his/her authority not to plead or prove serious priors (subd. (f)(1)).   In order to mitigate this latter restriction on prosecutorial authority, subdivision (f)(2) permits the prosecutor to move the dismissal of a prior for insufficient evidence or in furtherance of justice.

To suggest that by this provision (mitigating a prosecutor restriction) the Legislature intended to give judges the very power it had recently taken from them—the power, on their own motion, to dismiss serious priors in furtherance of justice—is to suggest “absurd consequences which the Legislature did not intend.”  (People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

The Legislature made their intent plain:  “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.”  (Subd. (b);  italics added.)   It consistently implemented this intent, as we have indicated, by restricting prosecutor and judge discretion.   Had the Legislature intended to give judges power to dismiss priors on their own motion, it would have been a simple matter to have said so in subdivision (f)(2), as they had in section 1385, subdivision (a).   But to have done so, either expressly, or impliedly, would have been to thwart the expressed intent of the enactment.   Instead of “ensur[ing] prison sentences and greater punishment” the legislation, if it included such judicial authority, would have enabled judges—concerned about court congestion and crowded calendars—to impose shorter prison sentences and lesser punishment.

We conclude that subdivision (f)(2) mitigates a restriction on prosecutors and does not give judges, on their own motion, power to dismiss serious priors in furtherance of justice.

2. Separation of powers doctrine.

 Respondent's argument is the now familiar one:  (1) section 667, subdivision (f)(2) allows the prosecutor to “move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385”;  (2) since the statute authorizes the motion it impliedly empowers the court to grant it;  and (3) if the court has the power to dismiss such a prior felony conviction (upon motion by the prosecutor) then that power cannot constitutionally be conditioned upon prosecutor consent.  (People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.)   The argument is mistaken.

When Tenorio was decided, trial courts had authority to dismiss priors in furtherance of justice.   When “three strikes” was enacted trial courts had no such authority.

As we have indicated, “three strikes” restricts the authority of both prosecutor and trial court.   It mitigates that restriction by conferring upon the prosecutor the limited power to move the dismissal of a prior felony conviction (§ 667, subd. (f)(2)) and by conferring upon the trial court the implied power to grant the motion.

We find no violation of the separation of powers doctrine.  (See People v. Campos, supra, 38 Cal.App.4th 1669, 1674–1675, 45 Cal.Rptr.2d 706.)

3. Cruel and unusual punishment.

The trial court concluded it would be cruel and unusual punishment to sentence respondent to a 25–years–to–life term.   We disagree.

Our Supreme Court has emphasized “the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual.   The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature.   Perhaps foremost among these are the definition of crime and the determination of punishment.   While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ”  (People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)

“A penalty offends the proscription against cruel and unusual punishment when it is ‘so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’   (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921];  In re DeBeque (1989) 212 Cal.App.3d 241, 248 [260 Cal.Rptr. 441].)  ‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree.   The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.   The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense” [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.’  (Lynch, supra, 8 Cal.3d at pp. 423–424 [105 Cal.Rptr. 217, 503 P.2d 921];  People v. Kun (1987) 195 Cal.App.3d 370, 374 [240 Cal.Rptr. 564].)”  (People v. King (1993) 16 Cal.App.4th 567, 571–572, 20 Cal.Rptr.2d 220.)

 “The Lynch court fashioned a three-pronged test to aid in determining whether a particular punishment is unconstitutionally disproportionate to the offense for which it is imposed;  the test is not determinative, but is a tool to aid in the court's inquiry.   Under the first prong, the court examines the nature of the offense and/or the offender, paying particular attention to the danger each poses to society.   Secondly, the court may compare the challenged punishment with punishments prescribed for other, more serious, crimes in the same jurisdiction.   Finally, the challenged penalty may be compared with punishments for the same offense in other jurisdictions.”  (People v. Almodovar (1987) 190 Cal.App.3d 732, 739–740, 235 Cal.Rptr. 616.)

The analysis developed in In re Lynch and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case.  (In re DeBeque (1989) 212 Cal.App.3d 241, 249, 260 Cal.Rptr. 441.)   Determinations whether a punishment is cruel or unusual may be made based on the first prong alone.  (See, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482–488, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Weddle (1991) 1 Cal.App.4th 1190, 1198–1200, 2 Cal.Rptr.2d 714;  People v. Young (1992) 11 Cal.App.4th 1299, 1308–1311, 15 Cal.Rptr.2d 30.)   The defendant has the burden of establishing that his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe.  (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254–255, 260 Cal.Rptr. 441.)

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

Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.  (See People v. Karsai (1982) 131 Cal.App.3d 224, 242, 182 Cal.Rptr. 406 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)   In discussing recidivist statutes the Supreme Court of the United States has stated:  “The purpose of a recidivist statute ․ [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.   This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.   Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  (Rummel v. Estelle (1980) 445 U.S. 263, 284–285, 100 S.Ct. 1133, 1144–45, 63 L.Ed.2d 382.)

Respondent was subject to a 25–years–to–life term not just because he possessed codeine on May 15, 1994, but because of his serious prior criminal offenses.   In 1985 respondent committed an attempt murder and attempt robbery and was committed to the California Youth Authority.   He was paroled August 2, 1988, and in May 1990, while on parole, committed a burglary and was sentenced to state prison.   In February 1991, respondent pleaded guilty to being under the influence of a controlled substance (Health & Saf.Code, § 11550) and giving false identification to a peace officer (§ 148.9) and served four months in county jail.   In 1992 respondent was again convicted of burglary and sentenced to state prison.

As this chronology demonstrates, respondent, not yet 27, has had a continuous criminal history for 10 years.   He has been granted parole, he has been jailed and imprisoned—all without apparent reformative or deterrent effect.   Under all the circumstances, this case and this defendant is not that “exquisite rarity” (People v. Weddle, supra, 1 Cal.App.4th at p. 1196, 2 Cal.Rptr.2d 714)—an instance of punishment which offends fundamental notions of human dignity or which shocks the conscience.

4. Resentencing guidelines.

Since we shall vacate the sentence, remand the matter to the trial court, and order a new sentence hearing—we provide the following sentence guidelines.

Although respondent is not eligible for probation, a current probation report may be helpful to the trial court and it should consider ordering one (§ 1203).  (At the first sentence hearing the trial court only had a pre-plea probation report.)

 Unlike a “strike” prior (§ 667, subds. (b)–(i)), a state prison prior (§ 667.5, subd. (b)) may be stricken “in furtherance of justice” on the trial court's own motion or on motion of the prosecutor (§ 1385, subd. (a)).   There are two 4 such state prison priors subject to trial court discretion.   If either is struck “in furtherance of justice” the reasons “must be set forth in ․ the minutes ” (§ 1385, subd. (a)).   Failure to state the reasons in the minutes renders a dismissal under section 1385 invalid.  (In re Juan C. (1993) 20 Cal.App.4th 748, 753, 24 Cal.Rptr.2d 573;  People v. Orin (1975) 13 Cal.3d 937, 943–945, 120 Cal.Rptr. 65, 533 P.2d 193.)

 If the trial court would grant a motion to dismiss a prior felony conviction (§ 667, subds. (b)–(i)) should the prosecuting attorney make such a motion, the trial court may appropriately request the prosecuting attorney to address the issue, consider the matter, exercise its executive discretion, and inform the trial court of its decision and its reasons for the decision.

Such a trial court request is appropriate because section 667, subdivision (f)(1) eliminates prosecutor discretion not to allege a qualifying prior felony conviction while section 667, subdivision (f)(2) authorizes the prosecutor to move to dismiss an alleged felony conviction “in the furtherance of justice.”   Together, these sections indicate that there are prior felony convictions which may be alleged without transgressing the prohibition against cruel or unusual punishment but whose dismissal would be “in the furtherance of justice.”

Since it is the prosecuting attorney who has been entrusted with the initial discretion to determine whether or not dismissal of a prior felony conviction would be “in the furtherance of justice,” that discretion, in appropriate cases, cannot be avoided but must be exercised.

In the instant case, from all appearances, no such prosecutor discretion was exercised.   We note that in the eight superior court appearances, prior to the September 12, 1994, commencement of trial, the People were represented by four different deputy district attorneys.   On the trial date, a fifth deputy district attorney represented the People and prosecuted the case.   At the sentence hearing, the trial court, without asking the prosecutor if the district attorney had exercised its section 667, subdivision (f)(2) discretion, simply announced its decision to strike a felony conviction.   When the prosecutor then called the court's attention to its slight of the People, the trial court apologized but stated, “The prosecution always says no.   They say, we can't do it.”

We are satisfied the legislature intended more from the prosecutor than a reflexive “no ․ we can't do it.”


The conviction and findings are affirmed.   The sentence is vacated and the matter is remanded to the trial court for a new sentence hearing.

I respectfully dissent.

Before explaining my reasons for dissenting, however, I wish to wholeheartedly endorse the final section of the majority opinion, labeled “Resentencing guidelines,” and especially my colleagues' strong admonition to both the trial court and the prosecutors.   My colleagues want them to take seriously the People's exercise of its clear statutory discretion under Penal Code section 667, subdivision (f)(2) to move to dismiss a prior serious felony “in the furtherance of justice.”   I do, too.

Furthermore, in my view, any reasonable prosecutor who seriously considers the facts of this case will decide to make such a motion.   It is an unwise use of scarce prison resources to imprison this 27–year–old drug addict until and possibly through his dotage because as a teenager he committed a crime which resulted in two convictions and a decade later had a few codeine pills in his possession.   The intervening drug possession and burglary charges only mark him as a classic narcotics user and not the sort of dangerous recidivist the “three strikes” law was aimed to incarcerate for the rest of his natural life.

I realize the district attorney's office undoubtedly felt compelled to file this appeal challenging the trial court's authority to unilaterally dismiss the prior serious felony convictions.   Nonetheless, I trust that upon remand the office will examine anew the wisdom of permitting these same priors to remain charged against appellant and thus condemn him to a lifetime in prison and society to a lifetime of supporting him there.

Turning to the remaining issues, I disagree with my colleagues' holding the “three strikes” law eliminates the trial court's authority to dismiss a prior on its own motion “in the furtherance of justice” (maj. opn. at pp. 321–322), for reasons expressed in my dissenting opinions in People v. Petty (1995) 37 Cal.App.4th 730, 736–743, 44 Cal.Rptr.2d 34, rev. granted 11/2/95;  People v. Bailey (1995) 37 Cal.App.4th 871, 892–899, 44 Cal.Rptr.2d 205, rev. granted 11/16/95;  and People v. Campos (1995) 38 Cal.App.4th 1669, 1679–1689, 45 Cal.Rptr.2d 706.   I further disagree with my colleagues' holding it is not a violation of the constitutional guarantee of separation of powers for the Legislature to require the executive branch, e.g., the prosecutor, to move dismissal of such priors, before the judicial branch, e.g., the trial court, is allowed to exercise its judicial discretion to do so, again for reasons expressed in my prior dissenting opinions in like cases.  (See People v. Petty, supra, 37 Cal.App.4th 730, 744–749, 44 Cal.Rptr.2d 34, People v. Bailey, supra, 37 Cal.App.4th 871, 899–905, 44 Cal.Rptr.2d 205, and People v. Campos, supra, 38 Cal.App.4th 1669, 1689–1694, 45 Cal.Rptr.2d 706.)

All sides concede trial courts possess the inherent constitutional power and duty to avoid imposing sentences which constitute “cruel and unusual punishment.”   Accordingly, if the trial court was correct in concluding it would represent cruel and unusual punishment to impose a sentence of 25 years to life on this appellant, this court would have to affirm.   Although I consider this a closer case on that issue than my colleagues do, I agree with their ultimate holding this sentence does not qualify as “cruel and unusual punishment,” even though in my view it clearly is not “in the furtherance of justice” and should be overturned on that ground.

If appellant's only convictions were the three which qualified him for the 25 years to life sentence under the “three strikes” law, I would be inclined to find this punishment to be so disproportionate as to constitute “cruel and unusual punishment,” for reasons akin to those spelled out in my dissent in People v. Campos, supra, 38 Cal.App.4th 1669, 1694–1699, 45 Cal.Rptr.2d 706.   His first two convictions—the “serious felony” strikes—arose out of single incident when he was still a minor.   Furthermore, the only difference between appellant with his soon-to-be life sentence in prison and someone who continues walking around free despite prior convictions for those same serious offenses is 13 tiny codeine pills appellant possessed solely for his own personal use.   If those three convictions represented his entire criminal record, it would be difficult to argue he could be sent away for life without offending the cruel and unusual punishment provision of the Constitution.

But in examining the defendant as well as the crimes, as we are instructed to do, we find appellant to be a recidivist who has been convicted of two other non-qualifying felonies, commercial burglaries, over the past decade.   While I regard it as a close case, I cannot conclude it constitutes cruel and unusual punishment to impose a sentence of 25 years to life on someone who has compiled this sort of criminal record over just the past decade.   Nor do I believe it appropriate to ignore these non-qualifying felonies in evaluating the constitutionality of a “third strike” sentence in this case.

I do wish to underscore, however, that a sentence can be constitutional and yet not be in the furtherance of justice.   In my view, as explained above, the trial court had the power to strike the priors in the furtherance of justice and, furthermore, I would affirm the court's exercise of its discretion in doing so in this case.


FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   The complaint erroneously charged respondent with possession of cocaine and alleged the wrong code section, Health and Safety Code section 11377, subdivision (a).   The mistakes were repeated in the information.   At superior court arraignment cocaine was corrected to codeine but the wrong section was retained for another three months until September 12, 1994, when trial commenced.

3.   The subdivision 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.”

4.   The trial court's “conversion” of the attempted robbery prior into a state prison prior was a nullity:  it is a prosecutorial, not a judicial function to file accusatory pleadings;  an essential element of a state prison prior—namely, state prison incarceration—was not alleged;  and there was no finding by the jury of state prison incarceration.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.