PEOPLE v. WILLIAMS

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

The PEOPLE, Plaintiff and Respondent, v. Johnny L. WILLIAMS, Defendant and Appellant.

No. B086805.

Decided: August 31, 1995

Phillip I. Bronson, under appointment by the Court of Appeal, Encino, for defendant and appellant. Daniel E. Lungren, Atty. Gen. of the State of Cal., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Roy C. Preminger, Deputy Atty. Gen., Sanjay T. Kumar, Asst. Supervising Deputy Atty. Gen., and Leslie P. McElroy, Deputy Atty. Gen., for plaintiff and respondent.

This case is one of many challenging the amendments to Penal Code section 667, adopted by the Legislature effective March 7, 1994, and Penal Code section 1170.12, added by Proposition 184, approved by the voters on November 8, 1994, both sometimes referred to as the “three strikes” sentencing law.   Here appellant, who suffered two prior serious or violent felony convictions within the meaning of Penal Code 1 section 667, was found guilty of one count of attempted first degree burglary.   He was sentenced to a term of 25 years to life pursuant to Penal Code section 667, subdivision (e), on the attempted burglary conviction.   Two consecutive five year enhancements for the prior felony convictions were added pursuant to Penal Code section 667, subdivision (a).

Appellant raises numerous issues concerning the validity of his sentence, all of which are predicated on the fact that the trial court concluded that the new sentencing laws deprived it of authority under Penal Code section 1385 to dismiss or strike the prior serious felony convictions on appellant's or its own motion, so as to impose a lesser sentence.   Appellant also claims that his sentence constituted cruel and unusual punishment and that he was improperly granted only 10 peremptory challenges instead of the 20 authorized by Code of Civil Procedure section 231.   We conclude that the trial court correctly determined that it had no authority to strike the prior felony convictions once true findings as to those allegations had been made, and reject appellant's other assignments of error.   Accordingly, we affirm the sentence.

Discussion

1. The trial court has limited authority to strike or dismiss prior serious felony conviction allegations for purposes of the three strikes law.

This case concerns the interplay of two provisions of the Penal Code:  Section 1385, which authorizes a trial court to dismiss an action in furtherance of justice, and section 667, which prescribes longer sentences for persons convicted of certain felonies who have previously been convicted of specified criminal offenses.   We therefore begin our discussion with an examination of these statutes.

Section 1385 was originally enacted in 1872 and continues in force, with certain minor amendments, to this day.   The statute provides that “The judge or magistrate may, either on 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.”  (§ 1385, subd. (a).) 2  “A long line of decisions, stretching over nearly 30 years, ․ established that a trial court's general statutory authority to ‘dismiss' an action ‘in furtherance of justice’ under section 1385 includes the power to ‘strike’ a prior conviction for purposes of sentencing, whether or not the conviction has been admitted or established by the evidence.”  (People v. Fritz (1985) 40 Cal.3d 227, 229–230, 219 Cal.Rptr. 460, 707 P.2d 833.)

In June 1982, the voters approved an habitual offender initiative measure, which was added to the Penal Code as section 667.3  That section mandates that any person convicted of a serious felony who has previously suffered a conviction for a serious felony shall receive a five-year sentence enhancement.

In Fritz, supra, the Supreme Court was called upon to determine whether newly adopted section 667 abrogated the trial court's well-established statutory authority to strike a prior conviction pursuant to section 1385.   The Supreme Court held that it did not, and pointed out that drafters of sentencing provisions “need to include clear language eliminating a trial court's section 1385 authority whenever such elimination is intended.”   (People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833.)  “[I]t 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 [ (1979) ], 24 Cal.3d [514] at pp. 519–521 [156 Cal.Rptr. 450, 596 P.2d 328] [specific language in section 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under section 1385];  [Citation.] )   As we stated in People v. Williams, supra [ (1981) ], 30 Cal.3d [470] 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.)

In 1986, in response to the Fritz decision, the Legislature amended section 1385 by adding subdivision (b), which states:  “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.”  (Stats.1986, ch. 85, § 2, p. 211.)   The phrase “In compliance with subdivision (b) of section 1385,” was also added to the beginning section 667.  (Stats.1986, ch. 85, § 1.5, p. 211.)   By adopting these amendments, the Legislature “could not more clearly have expressed a contrary intent to judicial discretion in the area of prior serious felonies as enhancements under Penal Code section 667.”  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)

Effective March 7, 1994, the Legislature again amended section 667.   The pre-existing enhancement provisions were grouped in subdivisions (a) and (j).  Subdivisions (b) through (i), the so-called “three strikes law,” were added, to increase the term of imprisonment upon a felony conviction for those defendants who have suffered a prior violent or serious felony conviction.  (Stats.1994, ch. 12, §§ 1 and 2.)   The stated purpose of the three strikes law is “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.”  (Pen. Code, § 667, subd. (b).)  This purpose is accomplished by subdivision (e), which provides that “the determinate ․ or minimum term for an indeterminate term” shall be twice the term otherwise provided as punishment for the current felony conviction, if the defendant has one prior serious or violent felony conviction, and an indeterminate term of life imprisonment with a minimum term calculated as provided in the section, if the defendant has two or more serious or violent felony convictions.

 The increased sentences provided for in section 667, subdivision (e) are not “enhancements.”  (People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, review den.)   An enhancement is an additional term of imprisonment added to the term prescribed for the underlying crime itself.  (People v. Rayford (1994) 9 Cal.4th 1, 9, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  People v. Hernandez (1988) 46 Cal.3d 194, 249 Cal.Rptr. 850, 757 P.2d 1013;  Cal.Rules of Court, rule 405(c).)   As Justice Epstein points out in People v. Martin, supra:  “Section 667, subdivision (e)(1) does not provide for any kind of ‘added term.’   Instead, it defines the term for the crime itself, supplanting the term that would apply but for the prior serious or violent felony.”  (32 Cal.App.4th at p. 667, 38 Cal.Rptr.2d 776.)   The same conclusion has been reached by courts interpreting other similar habitual offender statutes, such as section 667.51 (People v. Decker (1988) 199 Cal.App.3d 694, 245 Cal.Rptr. 40) and section 667.7 (People v. Skeirik (1991) 229 Cal.App.3d 444, 280 Cal.Rptr. 175).   We conclude, therefore, that section 1385, subdivision (b), which limits the court's power to strike section 667 enhancements, does not prevent the court from dismissing or striking prior convictions for purposes other than sentence enhancement.

Section 667, subdivision (f)(2) (hereinafter, subdivision (f)(2)) provides that:  “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.”  (Emphasis added.)   Respondent contends that subdivision (f)(2), granting the prosecuting attorney discretion to move to strike prior conviction allegations in furtherance of justice, should be construed to mean that a court may strike such an allegation on that ground only on motion of the prosecuting attorney.   We conclude otherwise.

First, we note that section 667, subdivisions (f)(1) and (g) require the prosecuting attorney to plead and prove all prior serious or violent felony convictions except as provided in subdivision (f)(2).   As noted above, the first sentence of that latter subdivision permits the prosecuting attorney to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice or for lack of evidence.   Taken together, these three subdivisions limit prosecutorial discretion in charging prior violent and serious felony conviction allegations, but grant the prosecuting attorney specific authority to move to dismiss a prior conviction allegation “in the furtherance of justice” pursuant to section 1385, subdivision (a), and enlarge that authority to permit the prosecuting attorney to seek dismissal “if there is insufficient evidence to prove the prior conviction,” authority the prosecuting attorney would not have but for the specific language of subdivision (f)(2).

The Supreme Court made clear in People v. Fritz that, in order to eliminate or circumscribe the trial court's discretion to strike or dismiss an action or prior conviction allegation pursuant to section 1385, the Legislature must express its intent in clear language which does not require judicial interpretation.  (People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833;  see also People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)  Sections 1385, subdivision (b) ( “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence ․”) and 1385.1 (“notwithstanding Section 1385 or any other provision of law, a judge shall not strike or dismiss any special circumstance ․”) are examples of explicit legislative directives eliminating the trial court's section 1385 authority.   Unlike those examples, subdivision (f)(2) contains no similar explicit language subjecting the trial court's authority under section 1385, subdivision (a) to the concurrence of the prosecuting attorney.   To the contrary, the grant of power contained in the second sentence of subdivision (f)(2) is not conditional but absolute.   There is no express requirement that the court exercise its authority to dismiss or strike only on the motion of the prosecuting attorney.4  Rather, such a conclusion can be reached only by implication.   To do so, however, would not accord with the lessons of Fritz and Thomas, supra, that the Legislature must use clear and explicit language when it intends to withdraw the trial court's section 1385 authority.   Consequently, we interpret the plain language of subdivision (f)(2) to mean that, in addition to its authority under section 1385 to dismiss or strike a prior conviction allegation in the interest of justice, the trial court is granted express authority to dismiss or strike such an allegation if there is insufficient evidence to prove that allegation, whether at the prosecuting attorney's instance or on its own motion.

While subdivision (f)(2) grants the court authority to dismiss or strike prior conviction allegations on its own motion if there is insufficient evidence to prove the allegations, and the court retains authority under section 1385 to strike such allegations in the furtherance of justice, subdivision (c) of section 667 (hereinafter subdivision (c)) does limit the court's exercise of its authority.   The latter subdivision provides in 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), 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.”

 As we read these two provisions of the three strikes law, the court is authorized to dismiss or strike prior conviction allegations on its own motion under section 1385 in the furtherance of justice, and under subdivision (f)(2) for insufficiency of evidence, but only before a true finding as to the allegations has been returned.   Once the prior conviction allegations have been “pled and proved,” the trial court is without authority to “suspend execution or imposition” of sentence on those convictions by way of striking or dismissing them.5  Moreover, after the prior conviction allegations have been pled and proved, the court lacks authority irrespective of the prosecuting attorney's determination that dismissal of the allegations would be in the furtherance of justice.   Thus, the fair import of the terms and the substance of the statute establish that the court, on its own motion or on motion of the prosecuting attorney, may dismiss or strike prior conviction allegations in furtherance of justice or if there is insufficient evidence to prove the allegations up until the time that the allegations have been proved.   Once true findings have been made, the court may not, either on the prosecutor's motion or sua sponte, strike or dismiss the prior felony convictions for sentencing purposes.6

In reaching these conclusions we are mindful that our primary task in construing a statute is to determine the lawmakers' intent.  (Code Civ.Proc., § 1859;  People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163;  Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)   In enacting a statute, the Legislature is deemed to be aware of statutes and judicial decisions already in effect and to have enacted the new statute in light thereof.  (People v. Hernandez (1988) 46 Cal.3d 194, 201, 249 Cal.Rptr. 850, 757 P.2d 1013.)  “In the construction of a statute ․ the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted;  ․” (Code Civ.Proc., § 1858.)   The words used must be construed in context and provisions relating to the same subject matter are to be harmonized to the extent possible.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   Further, all provisions of the Penal Code “are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”   Statutes are to be interpreted in a manner to uphold their constitutionality wherever possible.

Were we to adopt respondent's interpretation of the statutory language, we would be forced to conclude that section 667 is unconstitutional.   For to subject the court's discretion to the prosecuting attorney's control, as respondent contends subdivision (f)(2) does, would violate the separation of powers doctrine found in Article III, section 3 of the California Constitution, which provides:  “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 provided by this Constitution.”   (See Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Tenorio (1970) 3 Cal.3d 89, 94–95, 89 Cal.Rptr. 249, 473 P.2d 993.)   Happily, a plain reading of the statute is not susceptible to respondent's interpretation, and thus the specter of a violation of the separation of powers is not presented.

In Tenorio, the Supreme Court was concerned with Health and Safety Code section 11718, which provided that “no allegation of fact which, if admitted or found to be true, would change the penalty for the offense charged ․ may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.”  (People v. Tenorio, supra, 3 Cal.3d at p. 91, 89 Cal.Rptr. 249, 473 P.2d 993.)   The Supreme Court found that this provision recognized that the power to strike prior convictions was vested in the trial court, but nevertheless conditioned the exercise of the power on the approval of the executive branch, in the person of the prosecutor.   This, the Supreme Court concluded, violated the separation of powers doctrine of the California Constitution.   The prosecutor is vested with discretion to determine which crimes and prior convictions will be alleged, but once an action has been filed the power to dismiss that action, including the power to strike prior conviction allegations, belongs to the trial court.   The Legislature may remove that power from the trial court, but it cannot condition the exercise of that power on the executive branch's approval.

Esteybar is to the same effect.   There, the court was concerned with section 17, subdivision (b)(5), which at the time provided in part that a crime punishable by imprisonment in state prison or county jail was a misdemeanor when, at or before the preliminary examination and with the consent of the prosecuting attorney and the defendant, the magistrate determines that the offense is a misdemeanor.  “Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violates the doctrine of separation of powers.   While it may be conceded that the Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon approval of the district attorney.”  (Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)

Unlike the statutory provisions at issue in Tenorio and Esteybar, subdivision (f)(2) does not condition the court's exercise of its power to dismiss or strike a prior conviction on the concurrence of the prosecutor.   We believe that our interpretation of the statutory language of section 667 accords with the plain meaning of that section, and avoids the constitutional infirmity which would exist if the section were interpreted as respondent proposes.

At appellant's sentencing hearing, which occurred after the prior felony conviction allegations had been pled and proved, the trial court concluded that it had no authority under section 667 to strike those convictions for purposes of imposing sentence in this case.   For the reasons stated above, the trial court was correct, and thus did not err in imposing a sentence of 25 years to life in prison pursuant to section 667.

[[1]]

Disposition

The judgment is affirmed.

The prosecution argues that Penal Code 1 section 1385, subdivision (b) and section 667, subdivisions (b) through (i) prohibit a trial court from striking a qualifying prior felony conviction, except upon motion of the prosecution or if the evidence is insufficient to prove the qualifying prior felony conviction;  the trial court has no authority to strike a qualifying prior felony conviction on its own motion in the furtherance of justice pursuant to section 1385.   Defendant responds that section 1385, subdivision (b)'s prohibition against the striking of qualifying prior felony conviction enhancements is not applicable to the new statutory provisions.   Defendant also responds that the provisions of section 667, subdivisions (b) through (i) do not abrogate the trial court's authority to strike qualifying prior felony convictions pursuant to section 1385.   Defendant responds further that if the new statutory provisions prohibit a trial court from striking a qualifying prior felony conviction in the furtherance of justice pursuant to section 1385, except on motion of the prosecution, the provisions violate the state constitutional separation of powers doctrine.   The majority concludes:  (1) section 1385, subdivision (b) does not prohibit a trial court from striking a qualifying prior felony conviction;  (2) the trial court retains discretion under the new statutory provisions to strike qualifying prior felony convictions until they have been proved;  and (3) after qualifying prior felony convictions have been proved, the trial court may not strike a qualifying prior felony conviction either on its own motion or on motion of the prosecution.

I agree with the majority that section 1385, subdivision (b) does not effectively prohibit a trial court from striking a qualifying prior felony conviction.2  I also agree with the majority's conclusion that a trial court retains authority to strike a qualifying prior felony conviction under section 667, subdivisions (b) through (i).   I diverge from the majority's reasoning for this conclusion, however, and also disagree with its conclusion that the trial court's authority ceases once the qualifying prior felony conviction has been proved.   In my view:  (1) the statutory provisions prohibit a trial court from striking a qualifying prior felony conviction in the furtherance of justice pursuant to section 1385, except on motion of the prosecution;  (2) such a motion of the prosecution may be granted by the trial court both before and after a qualifying prior felony conviction has been proved by admission or true finding;  and (3) this conditioning of the trial court's authority to strike qualifying prior felony convictions on approval of the prosecution constitutes a violation of the state constitutional separation of powers doctrine.   Accordingly, in my opinion, a trial court retains jurisdiction to strike qualifying prior felony convictions on its own motion at any time prior to sentencing.

The Applicable Statutes

Section 667 was enacted by the voters in 1982, as part of Proposition 8.  (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   As enacted by the voters in 1982, section 667 prescribed a five-year sentence enhancement for any defendant convicted of a serious felony, who had previously suffered a conviction for a serious felony.3  (People v. Ramirez (1995) 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374.)

Prior to 1986, section 1385 permitted a trial court to strike a qualifying section 667 prior felony conviction in the furtherance of justice, on its own motion or on motion of the prosecution.  (People v. Fritz (1985) 40 Cal.3d 227, 231, 219 Cal.Rptr. 460, 707 P.2d 833, overruled by § 1385, subd. (b).)  “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.”  (§ 1385.)   The power to dismiss an action under section 1385 includes the power to strike a prior felony conviction.  (People v. Thomas (1992) 4 Cal.4th 206, 209, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   In 1986, sections 667 and 1385 were amended by the Legislature to prohibit trial courts from striking qualifying prior felony conviction enhancements.  (Stats.1986, ch. 85, §§ 1.5, 2, p. 211, urgency, eff. May 6, 1986.)  “[Section 1385] does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”  (§ 1385, subd. (b).)  “In compliance with subdivision (b) of Section 1385, any 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.”  (§ 667, former subd. (a).)

Effective March 7, 1994, the Legislature adopted Assembly Bill No. 971, which amended section 667 to include the so-called “three strikes” legislation increasing the sentences of certain recidivist offenders.  (Stats.1994, ch. 12, §§ 1, 2.) 4  This amendment significantly increased the sentence of a person convicted of any felony offense who had previously been convicted of one or more serious or violent felonies.  (People v. Ramirez, supra, 33 Cal.App.4th at p. 564, 39 Cal.Rptr.2d 374.)   In the case of a single prior serious or violent felony conviction, the term for the current felony conviction is doubled.  (§ 667, subds. (d)(1), (e)(1).)   In the case of more than one such qualifying prior felony conviction, the sentence is life.  (§ 667, subds. (d)(1), (e)(2).)   On November 8, 1994, the voters enacted virtually identical legislation by approving Proposition 184, which added new section 1170.12 to the Penal Code.  (People v. Ramirez, supra, 33 Cal.App.4th at p. 565, 39 Cal.Rptr.2d 374.)

Pursuant to the new statutory provisions, the prosecutor must plead and prove every known qualifying prior felony conviction and may not use such prior convictions in plea bargaining.  “[Section 667, subdivision] (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․  [U]pon 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).” 5

Trial Court Discretion To Strike

The first issue is whether the Legislature in enacting section 667, subdivisions (b) through (i) intended to condition the trial court's authority to strike a qualifying prior felony conviction on the approval of the prosecution.   I conclude that the Legislature so intended.   A trial court may exercise its discretion to dismiss or strike under section 1385 in all cases where the Legislature has not clearly evidenced a contrary intent.   (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   It is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.  (People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. Tanner (1979) 24 Cal.3d 514, 518–521, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Staples (1988) 204 Cal.App.3d 272, 274–276, 251 Cal.Rptr. 60.)

Section 667, subdivision (f)(2) provides that the prosecutor may move to strike a qualifying prior felony conviction in the furtherance of justice or on account of insufficiency of the evidence.   The express grant to the prosecutor of the authority to move to strike implies a corresponding grant to the trial court of authority to grant or deny the motion.  Section 667, subdivision (f)(2) further provides that the trial court may strike a qualifying prior felony conviction on its own motion on account of the insufficiency of the evidence.   Such an express grant of authority clearly indicates an intent to prohibit the trial court from striking a qualifying prior felony conviction on its own motion on any other ground.  “Expressio unius est exclusio alterius.”   (In re Joseph B. (1983) 34 Cal.3d 952, 956, 196 Cal.Rptr. 348, 671 P.2d 852.)   It is apparent by the express grant of authority to the prosecutor and the limited grant of authority to the trial court that the Legislature intended to deprive a trial court of the authority to strike a qualifying prior felony conviction on its own motion in the furtherance of justice.

This legislative intent is further demonstrated by other provisions of the legislation expressly stating the intent to ensure longer prison terms for recidivist offenders (§ 667, subd. (b)) and prohibiting the grant of probation or the suspension of imposition or execution of sentence (§ 667, subd. (c)(2)).   The intent to ensure longer prison sentences would not be served by recognizing the trial court's authority to strike, and the prohibition against probation implies an intent to preclude the trial court from striking qualifying prior felony convictions.   The entire thrust of the legislation is to curtail the discretion of both the prosecutor and the trial court.

Pled and Proved

The second issue is whether the Legislature in enacting section 667, subdivisions (b) through (i) intended to prohibit the trial court from striking a qualifying prior felony conviction on its own motion or on motion of the prosecution after the qualifying prior felony conviction has been proved.   I concluded that the Legislature did not so intend.   Pursuant to section 1385, a trial court is authorized to strike a prior felony conviction “whether or not the conviction has been admitted or established by the evidence.”   (People v. Fritz, supra, 40 Cal.3d at pp. 229–230, 219 Cal.Rptr. 460, 707 P.2d 833.)   A trial court may strike a prior felony conviction at any time prior to judgment.  (In re Cortez (1971) 6 Cal.3d 78, 87, 98 Cal.Rptr. 307, 490 P.2d 819.)   There is no authority for the proposition that the trial court's discretion to strike is dependent on the stage of the proceedings.   (Cf. People v. Tanner, supra, 24 Cal.3d at p. 519, 156 Cal.Rptr. 450, 596 P.2d 328 [“[T]he mandatory provisions of [section 1203.06] may not be avoided by employing section 1385 to strike either the allegations of the complaint or the findings of the jury.”];  People v. Benjamin (1957) 154 Cal.App.2d 164, 173, 315 P.2d 896 [“It lies within the sound discretion of the trial court to dismiss [a qualifying prior felony conviction allegation] or not, after conviction and prior to pronouncing sentence.”];  People v. Bordeaux (1990) 224 Cal.App.3d 573, 581, 273 Cal.Rptr. 717 [“The discretion of the judge to dismiss ․ under Penal Code section 1385 in the interests of justice may be exercised ․ at any time during the trial, while the case is before the jury, or even after a jury verdict.”];  People v. Mazza (1985) 175 Cal.App.3d 836, 844–845, 221 Cal.Rptr. 640 [trial court retains discretion to strike a qualifying prior felony conviction at any time prior to sentencing].)

Nor does the language of section 667 lead to the reasonable inference that the Legislature intended to make such a distinction.  Section 667, subdivision (f)(2) makes specific reference to dismissing or striking a qualifying prior felony conviction pursuant to section 1385.   As noted, that section has been consistently applied to dismissing or striking qualifying prior felony convictions, either before or after the allegations have been proved by admissions or true findings.   The reference to the striking of an “allegation” is consistent with section 1385's reference to the dismissal of an “action.”   Indeed, it is the “allegation” which is stricken pursuant to section 1385, regardless of when the striking occurs.   Accordingly, the use of the word “allegation” in section 667, subdivision (f)(2) has no bearing on the timing of the trial court's dismissal or striking.   Similarly, the use of the phrase “pled and proved” in section 667, subdivision (c)(2) evidences only the intent of the Legislature to prohibit a trial court from striking a qualifying prior felony conviction at any time in the furtherance of justice except on motion of the prosecutor;  it has no bearing on the timing of the prohibited trial court action.

Separation of Powers Doctrine

The third issue is whether the legislation prohibiting a trial court from dismissing or striking a qualifying prior felony conviction in the furtherance of justice, except on motion of the prosecution, violates the state constitutional separation of powers doctrine.   Under binding California Supreme Court authority, I conclude that it does.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Article III, section 3 of the California Constitution provides:  “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.”  “ ‘ “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and ․ such questions are in the first instance for the judgment of the Legislature alone.” ’ ”  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)   The prosecution of a case involves an exercise of executive power.  (Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)

The Legislature may limit a trial court's discretion to dismiss actions or strike enhancements pursuant to section 1385.  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Valencia, supra, 207 Cal.App.3d at p. 1045, 255 Cal.Rptr. 180;  cf. Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140 [section 17, subdivision (b)(5) ].)   The Legislature may not, however, condition the exercise of that discretion upon the approval of the prosecutor.  (People v. Tenorio (1970) 3 Cal.3d 89, 94–95, 89 Cal.Rptr. 249, 473 P.2d 993;  Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140;  People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 65, 113 Cal.Rptr. 21, 520 P.2d 405.)

Tenorio was concerned with Health and Safety Code section 11718, which at that time provided “that in any proceeding under the narcotics division of the Health and Safety Code (division X), ‘no allegation of fact which, if admitted or found to be true, would change the penalty for the offense charged from what the penalty would be if such fact were not alleged and admitted or proved to be true may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.’ ”   (People v. Tenorio, supra, 3 Cal.3d at p. 91, 89 Cal.Rptr. 249, 473 P.2d 993.)

The Supreme Court in Tenorio determined that Health and Safety Code section 11718 violated the California Constitution's separation of powers doctrine because it granted “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.’ ”  (People v. Tenorio, supra, 3 Cal.3d at p. 93, 89 Cal.Rptr. 249, 473 P.2d 993.)   The power to strike prior convictions is a judicial power.  (Id. at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The prosecutor may only invite the trial court to exercise that power.  (Ibid.)  The Legislature may remove the power to strike priors from the trial court, but it may not condition exercise of that power on the prosecutor's prior approval.   (Ibid.)  The Supreme Court concluded that Health and Safety Code section 11718 recognized that the power to strike prior convictions was vested in the trial court, but impermissibly conditioned the exercise of that power on approval of the prosecutor.  (Id. at pp. 94–95, 89 Cal.Rptr. 249, 473 P.2d 993.)

The Supreme Court reached a similar conclusion the next year.  Esteybar concerned section 17, subdivision (b)(5) which at that time provided:  “(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:  ․ (5) When, at or before the preliminary examination and with the consent of the prosecuting attorney and the defendant, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.”

The Supreme Court in Esteybar determined that the Legislature had vested the power to reduce a “wobbler” from a felony to a misdemeanor in the judiciary, but had improperly compromised that power by requiring the prior approval of the prosecutor.  “Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violated the doctrine of separation of powers.   While it may be conceded that the Legislature in the first instance was not required to give the power to a magistrate to determine whether to hold a defendant to answer to a felony or a misdemeanor charge, having done so, the Legislature cannot condition its grant upon the approval of the district attorney.”  (Esteybar v. Municipal Court, supra, 5 Cal.3d at p. 127, 95 Cal.Rptr. 524, 485 P.2d 1140.)

Three years later, the Supreme Court reiterated the holdings of Tenorio and Esteybar.  On Tai Ho involved diversion.   Section 1000.2 at that time provided:  “ ‘The defendant's case shall not be diverted unless the district attorney concurs with the court's determination that the defendant be so referred though such concurrence is not necessary with respect to the program to which the defendant is referred.   If the court does not deem the defendant a person who would be benefited by diversion, or if the district attorney or the defendant do not consent to participate, the proceedings shall continue as in any other case.’ ”  (People v. Superior Court (On Tai Ho), supra, 11 Cal.3d at p. 63, fn. 3, 113 Cal.Rptr. 21, 520 P.2d 405.)   Once again, the Supreme Court concluded that the statute created an unconstitutional prosecutorial veto over an exercise of judicial power.  (Id. at p. 65, 113 Cal.Rptr. 21, 520 P.2d 405.)

Similar conclusions were reached by the Supreme Court in People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481 [Welfare and Institutions Code section 3051 unconstitutionally required concurrence of prosecutor in order for trial court to commit a defendant to the narcotics addict rehabilitation program] and the Court of Appeal in People v. Clay (1971) 18 Cal.App.3d 964, 96 Cal.Rptr. 213 [section 1203 improperly conditioned trial court's power to grant probation on concurrence of the prosecutor].

Section 667, subdivisions (b) through (i) contains a similar unconstitutional prosecutorial veto over the trial court's judicial authority to strike a qualifying prior felony conviction in the furtherance of justice pursuant to section 1385.  Section 667, subdivision (f)(2) expressly provides that the prosecutor may move to dismiss or strike a qualifying prior felony conviction in the furtherance of justice pursuant to section 1385.   As in Tenorio, the subdivision itself recognizes that the prosecutor invites the trial court to dismiss or strike, but the dismissal power is exercised by the trial court.   Nevertheless, the subdivision purports to limit the trial court's judicial authority to dismiss or strike to two situations:  (1) the evidence is insufficient or (2) in the furtherance of justice upon motion of the prosecutor.   Clearly, the trial court may dismiss or strike a qualifying prior felony conviction allegation if the evidence is insufficient to support a true finding.   It is just as clear under Tenorio that the Legislature may not subject the trial court's authority to dismiss in the furtherance of justice to a prosecutorial veto.

It is important to recognize that the section 667, subdivisions (b) through (i) does not preclude a trial court from striking a qualifying prior felony conviction in the furtherance of justice.   It merely subjects the trial court's authority to dismiss to prosecutorial approval.  Section 1385, subdivision (b), on the other hand, completely prohibits the trial court from dismissing or striking a prior serious felony conviction for purposes of the five-year enhancement, thus making the five-year enhancement mandatory.   The Legislature may so limit trial court discretion.   The courts have no inherent or constitutional authority to fix sentences or impose enhancements;  this authority is vested with the Legislature.  (People v. Tanner, supra, 24 Cal.3d at p. 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

The Legislature could have completely prohibited the trial court from dismissing or striking a qualifying prior felony conviction within the meaning of section 667, subdivisions (b) through (i) in the furtherance of justice.   The Legislature did not do so, however.   Instead, the Legislature provided that the trial court could dismiss or strike a qualifying prior felony conviction in the furtherance of justice only on motion of the prosecution.   This constitutes a violation of the state constitutional separation of powers doctrine.   Accordingly, trial courts retain the judicial authority to strike or dismiss qualifying prior felony convictions within the meaning of section 667, subdivisions (b) through (i) in the furtherance of justice pursuant to section 1385.

Abuse of Discretion

The trial court in this case concluded it had no discretion to strike defendant's prior felony convictions.   In so concluding, the trial court erred.   The error does not, however, require a remand for resentencing and exercise of discretion because any striking of the prior felony convictions in this case would have been an abuse of discretion.

Defendant was convicted of attempted residential burglary in 1994, after a criminal career which spanned almost 20 years.   He was convicted of grand theft auto in 1976, second degree burglary in 1978, 1979 and 1980, attempted residential burglary in 1982, two narcotics offenses in 1983, felony assault in 1984 and two narcotics offenses in 1987.   He had been sentenced to jail on six occasions and to state prison on two occasions.   At 38 years of age, he had never worked and was a substance abuser.   Defendant is precisely the type of revolving-door recidivist for whom the “three strikes” legislation was intended.

I agree the judgment should be affirmed.

FOOTNOTES

FN1. All further statutory references are to that Code unless otherwise indicated..  FN1. All further statutory references are to that Code unless otherwise indicated.

2.   In 1951 the statute was amended to add a final sentence:  “No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”

3.   Respondent requests that we take judicial notice of a letter dated February 16, 1994 from the Legislative Counsel of California to Assemblyman Richard Rainey.   We take judicial notice of the full legislative history of section 667, subdivisions (b) through (i).

4.   Indeed, a proposed Senate amendment to AB 971, which purported to “clarify” the Legislative intent to empower the court to dismiss or strike a prior felony conviction allegation under subdivision (f)(2) only upon the motion of the prosecutor, was not included in the final bill adopted by the Legislature and signed into law by the Governor.   That proposed amendment would have replaced the second sentence of subdivision (f)(2) with the following language:  “The court may dismiss or strike a prior felony conviction allegation only upon motion of the prosecuting attorney made on the ground that there is insufficient evidence to prove the prior felony conviction or in the furtherance of justice.”  (Senate Floor Amendments, Committee Analysis.)   The fact that the amendment was not adopted suggests that the language of the proposed amendment did not accurately reflect the Legislature's intent.

5.   By enacting subdivision (c)(2), the Legislature explicitly limited the court's discretion under section 1385 to strike or dismiss a prior felony conviction once the allegation had been pled and proved.   In so doing, the Legislature heeded the Supreme Court's admonishment in People v. Fritz, supra, 40 Cal.3d at page 230, 219 Cal.Rptr. 460, 707 P.2d 833 and People v. Thomas, supra, 4 Cal.4th at page 210, 14 Cal.Rptr.2d 174, 841 P.2d 159, to adopt “clear language eliminating a trial court's section 1385 authority” if such is its intent.

6.   We are aware that two divisions of this court have come to a different conclusion in interpreting these same provisions of section 667.   In People v. Glaster (1995), 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65, Division Two read an implied limitation on the court's authority to strike or dismiss a prior conviction only on the prosecutor's motion pursuant to subdivision (f)(2).   In so doing, the court made no distinction between the language of that subdivision, which refers to prior felony conviction allegations, and that of subdivision (c)(2), which speaks of prior felony conviction allegations which have been pled and proved.   As explained above, we believe that this distinction is crucial to the proper interpretation of section 667, and the court's failure to account for the distinction disregards the legislative history of the three strikes law.  (See footnote 4, supra.)In People v. Bailey (1995), 37 Cal.App.4th 871, 44 Cal.Rptr.2d 205 and People v. Petty (1995), 37 Cal.App.4th 730, 44 Cal.Rptr.2d 34, Division Seven of this court likewise read subdivision (f)(2) to require the prosecutor's concurrence before the court may dismiss a conviction allegation, although its reasoning differed from the Glaster court.   That court also held that increased sentencing under the three strikes law is an enhancement, which the trial court may not strike pursuant to section 1385, subdivision (b).   The court did not consider subdivision (c)(2) in its analysis.   Justice Johnson's dissent is in general accord with our analysis, although he, too, made no mention of the effect of subdivision (c)(2) on the court's authority to dismiss an allegation which has been pled and proved.

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

2.   I concur in this conclusion somewhat reluctantly, because in my opinion, the Legislature intended to prohibit a trial court from striking a qualifying prior felony conviction pursuant to section 1385, subdivision (b).   However, I must agree that the apparent legislative intent was not effectuated.

3.   As enacted by the voters, section 667 provided:“(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 [a] 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.”Section 667 was further amended by the Legislature in 1989 to add a new subdivision (e) relating to methamphetamine offenses and renumbering former subdivision (e) as subdivision (f).  (Stats.1989, ch. 1043, § 1, pp. 3619–3620.)

4.   Former subdivisions (a) through (e) were reenacted as subdivision (a).   Former subdivision (f) was reenacted as subdivision (j).   In addition, new subdivisions (b) through (i) were added.

5.   Since defendant committed the offense prior to the adoption of the initiative, we will cite to section 667 only.

ARMSTRONG, Associate Justice.

TURNER, P.J., concurs.