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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Clifford FRITZ, Jr., Defendant and Appellant.


Decided: May 11, 1984

Myra A. Weiher, San Mateo, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

The sole question in this appeal is whether the trial court may strike, pursuant to Penal Code section 1385, a prior “serious felony” conviction within the meaning of Penal Code section 667 in order to avoid imposition of the five-year consecutive enhancement mandated by that section.

Appellant Robert Fritz pleaded nolo contendere to charges of robbery (Pen.Code, § 211), false imprisonment (Pen.Code, § 236), assault with a deadly weapon (Pen.Code, § 245, subd. (a)), and assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (b)).  He also pleaded nolo contendere to three weapon use enhancements (Pen.Code, § 12022.5).   He admitted a 1977 prior felony conviction for which he had served a separate prison term (Pen.Code, § 667.5), and a 1982 prior “serious felony” conviction of robbery (Pen.Code, §§ 667, 1192.7, subd. (c)(19).)   He was sentenced to a total of 15 years in prison, including a consecutive term of 5 years for the prior serious felony robbery conviction.   The record of the sentencing hearing indicates that the trial court believed imposition of the serious felony enhancement was mandatory.

 In June 1982, the voters of California adopted the initiative measure known as Proposition 8, to accomplish changes in the state's criminal justice system for the purpose of protecting or promoting the rights of actual or potential victims of crime.  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 242–247, 186 Cal.Rptr. 30, 651 P.2d 274.)   In enacting Proposition 8, the state's voters intended to deter crime (People v. Smith (1983) 34 Cal.3d 251, 258–260, 193 Cal.Rptr. 692, 667 P.2d 149), and achieve more severe punishment for criminal acts.  (Brosnahan v. Brown, supra, 32 Cal.3d at p. 247, 186 Cal.Rptr. 30, 651 P.2d 274.)   Among the constitutional and statutory changes made by the initiative was the enactment of Penal Code section 667.   Subdivision (a) of section 667 requires that a person convicted of a “serious felony who previously has been convicted of a 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.” 1  (Emphasis added.)   Serious felonies within the meaning of section 667 are listed in Penal Code section 1192.7;  among those felonies are assault with a deadly weapon on a peace officer (subd. (c)(11)), and robbery (subd. (c)(19).)

Appellant contends that notwithstanding Penal Code section 667, the trial court retained discretion to strike the prior, and that the matter should be remanded for resentencing.   We disagree.

 The power to strike a charge of a prior conviction, whether or not it has been admitted or established by the evidence, is within the power referred to in Penal Code section 1385.2  (People v. Burke (1956) 47 Cal.2d 45, 51, 301 P.2d 241, disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641.)   In general, section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly indicated a contrary intent.  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The issue, therefore, is whether the legislators, in this instance the voters, expressed their intent that the mandatory provisions of section 667 are not to be avoided by employing section 1385.

 We first examine the language of the statute itself.   The use of the mandatory “shall” in subdivision (a) does not necessarily indicate that section 1385 is inapplicable (People v. Williams, supra, 30 Cal.3d at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029), and section 667 does not explicitly state that judicial discretion under section 1385 is precluded.   Nevertheless, subdivision (b) of section 667 does plainly state when the section shall not be applied:  “․ when the punishment imposed under other provisions of law would result in a longer term of imprisonment.”   This specified exception to the application of section 667 by necessary implication excludes all other exceptions.  (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828.)

In addition, section 667 specifies how its provisions may be changed.   Subdivision (c) permits the Legislature to increase the length of the enhancement by majority vote;  in contrast, any other amendments to the section require either a two-thirds vote of both houses of the Legislature or a statute effective only on approval by the voters.  (Pen.Code, § 667, subd. (e).)  The necessary implication of this restriction on the Legislature's power to ameliorate the mandate of section 667 is that the electorate did not intend trial courts to be able to nullify that mandate entirely by striking priors.

 Moreover, in ascertaining legislative intent, we must not read section 667 in isolation, but must construe it with reference to the whole system of law of which it is a part.  (People v. Ruster (1976) 16 Cal.3d 690, 696, 129 Cal.Rptr. 153, 548 P.2d 353, disapproved on other grounds in People v. Jenkins (1980) 28 Cal.3d 494, 503, fn. 9, 170 Cal.Rptr. 1, 620 P.2d 587.)   Acts relating to the same subject or having the same general purpose must be read together.  (Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590, 116 Cal.Rptr. 376, 526 P.2d 528.)   Accordingly, we must read section 667 in conjunction with the entire initiative of which it was a part, and, more specifically, in connection with other provisions of that initiative which refer to prior convictions.

When the voters enacted section 667, they also amended the state's Constitution by adding section 28, subdivision (f), to article I.   That subdivision provides in relevant part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Emphasis added.)   The unequivocal language, “without limitation,” also evidences voter intent to prohibit any discretion not to use a prior conviction for enhancement.  (Cf. People v. Williams, supra, 30 Cal.3d at pp. 482–484, 179 Cal.Rptr. 443, 637 P.2d 1029 [no provision of death penalty statute seeks to limit exercise of trial court's power to dismiss allegations].)

We must also assume that the electorate had in mind existing laws when it enacted section 667.  (See Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.)  Section 667.5 authorizes enhancement of sentences for prior separate prison terms served for felonies.   The version of Penal Code section 1170.1 in effect when Proposition 8 was enacted acknowledged the trial court's discretionary power to strike the additional punishment set out in section 667.5 and other sections, but circumscribed that power by permitting its exercise only if the trial court determined that there were mitigating circumstances for striking the punishment, and stated on the record the reasons for its decision.  (People v. Johnson (1979) 95 Cal.App.3d 352, 356, 157 Cal.Rptr. 150;  Pen.Code, § 1170.1 [Stats.1977, ch. 165, § 17, p. 649, renumbered Stats.1982, ch. 1515, No. 11 West's Cal.Legis.Service, p. 8203].)  While the electorate made numerous constitutional and statutory changes with Proposition 8, it did not amend section 1170.1 to add section 667 to the list of additional punishment enhancements which the trial court could strike provided it satisfied section 1170.1.   That omission is a clear indication of intent to withhold the power to strike.

 Furthermore, we must not engage in statutory construction which would render legislation a nullity (People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328), and must avoid results which are absurd in light of the legislative purpose.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   Were we to construe section 667 as appellant suggests, we would have to conclude that the voters intended the trial court to have broader discretion to strike a prior serious felony conviction than it had under existing law to strike a prior for which a separate prison term had been served.   Obviously that result would be irrational given the unmistakable purpose of the initiative.

 In construing initiative measures, courts may look to extrinsic evidence such as the legislative analysis included in the voters' pamphlet.   (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at pp. 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   According to that analysis prepared for Proposition 8, “Under existing law, a prison sentence can be increased ․ if the convicted person has served prior prison terms ․  [¶] This measure includes two provisions that would increase prison sentences for persons convicted of specific felonies.   First, upon a second or subsequent conviction, ․ the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.”  (Original emphasis omitted;  emphasis added.)   (Analysis by the Legislative Analyst, Ballot Pamp., Proposed Amend. to Cal. Const., Primary Election (June 8, 1982);  reprinted in the appendix to Brosnahan v. Brown, supra, 32 Cal.3d at pp. 302–304, 186 Cal.Rptr. 30, 651 P.2d 274.)

An argument might be made that the analyst's use of the term “could” suggested to the voters that imposition of the five year term would not be mandatory.   However, the common sense message of the analysis, read in its entirety, was that only where a longer term could be imposed by some other provision would the five-year term for a prior conviction not be given.

 In sum, we conclude that the electorate has indicated with sufficient clarity that the mandatory provisions of Penal Code section 667 are not subject to judicial discretion pursuant to Penal Code section 1385.3  We are aware that the court in People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27 held otherwise.   We believe, however, that Lopez was wrongly decided, and disagree with its conclusion.

Judgment is affirmed.


1.   In full, Penal Code section 667 provides:  “(a) 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.“(b) This section 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 section to apply.“(c) The Legislature may increase the length of the enhancement of sentence provided in this section by a statute passed by majority vote of each house thereof.“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of section 1192.7.“(e) 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.   Penal Code section 1385 provides in relevant part:  “The judge or magistrate may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

3.   We note that Division Three of the Second Appellate District has reached the same conclusion in People v. Superior Court (Fierro) (1984) 154 Cal.App.3d 385, 201 Cal.Rptr. 235.

SCOTT, Acting Presiding Justice.