PEOPLE v. MISSAMORE (1995)

I. INTRODUCTION

 This case raises the question of whether, under the “Three Strikes” law enacted by the Legislature last year (Pen.Code, § 667, subds. (b)-(i)),¹ a trial court may grant probation to a defendant who has already been convicted of a prior “violent or serious” felony.   We hold that it may not and, therefore, grant the petition for a writ of mandate.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 1994, real party in interest, Jeffrey Dean Missamore (hereafter sometimes defendant), was charged by the Sonoma County District Attorney with knowingly bringing a controlled substance into a county jail (§ 4573) and the separate offense of possessing marijuana in a county jail.  (§ 4573.6.)   The information alleged that Missamore had suffered a prior serious felony conviction for burglary, which subjected him to twice the minimum base prison term ordinarily applicable (§ 667(e)(1)), and that he served a prior prison term for that burglary and another for receiving stolen property, each of which subjected him to an additional one-year prison term.  (§ 667.5(b).)

The events that gave rise to this proceeding started on February 3, 1994, when Missamore was convicted of petty theft for stealing cigarettes and food from a supermarket in Santa Rosa.   Because he had previously been convicted of a theft offense, he was exposed to the possibility of a state prison term.  (§ 666.)   A state prison sentence was imposed but suspended on the condition petitioner serve 120 days in county jail.   The instant offense occurred while Missamore was in the county honor farm completing that jail term.   During a random search of inmates, he was found in the possession of cigarette rolling papers and 8.2 grams of marijuana and thereafter charged as noted above.

Pursuant to a negotiated arrangement with the district attorney, Missamore entered a plea of no contest to possessing marijuana in the county jail and admitted the prior serious felony conviction in exchange for the district attorney's agreement to dismiss the charge of bringing a controlled substance into a county jail.   The plea bargain did not include any agreement as to sentence.

The conviction at issue here (i.e., for possessing marijuana in a county jail) represented Missamore's fourth felony conviction.   His other three included one for burglary and two for receiving stolen property.²  Additionally, he had a criminal history of minor offenses, the most recent being a 1993 conviction for disturbing the peace (§ 415).

From the beginning, i.e., the July 1994 hearing at which the defendant's no contest plea was accepted, and continuing to the sentencing hearing the following month, the record clearly reflects that the trial court felt that Missamore was entitled to and should receive probation.   Indeed, at the August 1994 sentencing hearing, after hearing argument by both sides and before dealing at all with the applicability of section 667(b) through (i), the court first took up the issue of the defendant's suitability for probation under section 1203(e).   It found this to be an “unusual case[ ] where the interests of justice would best be served if the person is granted probation.”  (§ 1203(e)(4).)

The court then proceeded to note the prohibition of probation found in section 667(c) ³ and found, with respect to that section, that the state prison sentence urged by the district attorney “would shock the conscience and affect the fundamental notions of human dignity as referred to in the cases that have been submitted to the Court, thereby violating the prohibition against cruel and unusual punishment prohibited by Article One, Section Six [sic ] of the California Constitution and the Eighth Amendment of the Federal Constitution.”   The court explained this conclusion as follows:

“For this small amount of marijuana, where there is remorse;  where there is a desire by the defendant to be rehabilitated;  where it is believed that the defendant has a sincere desire and can be rehabilitated;  where the crime itself, with a small amount of marijuana, is not significant nor a danger to anyone;  where the defendant does not have a history of any violent conduct whatsoever;  where the crime for which he is charged is not a violent crime, it is not one that presents a danger of violence to society;  where the incarceration [of] the defendant in the state prison system would result in taking a space for a person who truly needs maximum-security confinement to protect society, such as from violent crime;  where the rehabilitative process of the defendant would be stopped and delayed during the period of time he is in state prison;  the Court believes it can reach no other conclusion but that the following of this law, referred to as three strikes ․” would shock the judicial conscience and constitute cruel and unusual punishment.

Finally, the court concluded that, under section 1385, “the trial court has inherent power to strike priors on its own, even though over the objection of the prosecutor.”   The court believed it also retained “the discretionary power to dismiss a prior conviction in the furtherance of justice under Penal Code section 667,” and that “[e]xercise of this right and power is not subject to prosecutorial control, and independently vested with the trial court by virtue of the separation of powers doctrine.”

With these as its premises, the court placed Missamore on probation for three years conditioned on his service of one year in county jail;  it also imposed other conventional conditions of probation.   Finding that the case presented unusual circumstances within the meaning of section 1203(e)(4), the court struck Missamore's prior serious felony conviction under section 1385, after determining that it possessed the legal power to do so.

On October 7, 1994, the People petitioned this court for a writ of mandate from the order granting probation.  (§ 1238(a)(10).)   This panel, with one dissent, summarily denied the petition on December 15, 1994.

Petitioner sought review in the California Supreme Court on December 23, 1994.   The petition was granted and, in an order dated March 2, 1995, the Supreme Court directed that we vacate our order denying mandate and issue an alternative writ, as we did on March 14, 1995.

III. DISCUSSION

A. The Statute at Issue Here

The purpose of the “Three Strikes” law, set forth in section 667(b), is “to ensure longer prison sentences and greater punishment” for persons convicted of any felony offense who have previously been convicted of one or more serious felonies within the meaning of section 1192.7(c) and/or violent felonies within the meaning of section 667.5(c).  (§ 667(d)(1).)   To achieve this goal, the new law provides that, if a defendant is convicted of a felony and it has been pled and proved that he or she has one prior serious or violent felony (the first strike), the minimum term shall be twice the term otherwise provided for the current felony conviction (the second strike).  (§ 667(d)(1), (e)(1).)   If the defendant has two or more prior serious and/or violent felony convictions, the minimum term imposed for the current felony (the third strike), is the indeterminate term of life with a minimum sentence of the greater of:  (1) three times the term otherwise provided for the current felony or felonies, (2) 25 years, or (3) the term determined by the court pursuant to section 1170 plus enhancements.  (§ 667(e)(2)(A).)   The sentences prescribed under the new law are in addition to any other enhancements or punishment that may apply.  (§ 667(e).)

Prosecuting attorneys are required to plead every prior felony conviction and are prohibited from using such convictions to negotiate pleas.   (§ 667(f)(1), (g).)   Significantly for present purposes, the sentencing court is prohibited from granting probation for the current offense or suspending sentence for a prior offense.  (§ 667(c)(2).)   The court must ordinarily commit the defendant to state prison and the imposition of consecutive sentences is also required.  (§ 667(c)(4), (c)(6), (c)(7), (c)(8), (e)(2)(B).)   The prosecuting attorney is, however, permitted to 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.  (§ 667(f)(2).)

On November 8, 1994, shortly after the “Three Strikes” law was enacted by the Legislature, the voters approved an initiative, Proposition 184, adding section 1170.12 to the Penal Code.   It is virtually identical to the provisions of section 667(b) through (i), just briefly described.   Because section 1170.12 became effective on November 9, 1994, after the sentencing here, it is nominally inapplicable to this case.

B. Issues Presented

The issues involved in this case are (a) whether section 667(c)(2) has the necessary effect of precluding—without any reference to any other provision of the “Three Strikes” law or section 1385(a)—the grant of probation in this and similar cases, (b) whether, if not and if reference to section 667(f)(2) is necessary, that provision violates the constitutional doctrine of separation of powers, (c) if so, whether the severability clause of the statute (§ 667(i)) may be utilized to salvage section 667(c), and (d) even if there is no other constitutional or statutory problem with the application of the statute, its application here violates the constitutional ban on cruel and unusual punishments.   We shall deal with these issues in that order.

C. Section 667(c)(2)

 The defendant, supported by amicus curiae (the California Public Defenders' Association), urges that section 667(c)(2) cannot be read “by itself” as it were, but instead must be read as if qualified or modified by section 667(f)(2) and, more specifically, the latter subdivision's reference to section 1385.   The petitioner, on the other hand, argues that section 667(c)(2) mandates a denial of probation in these circumstances and does so without any modification or qualification by section 667(f)(2).   We agree with petitioner.

Section 667(c)(2) clearly provides that once-convicted felons (assuming their prior felonies meet the definitions provided in subdivision (d) of the statute) cannot, upon a subsequent felony conviction, be eligible for probation.   There is no term or provision in section 667(c)(2) that requires a reference to section 667(f)(2) for a definition or explanation, nor does anything in the former refer to the latter;  indeed, it is difficult to imagine more explicit words the Legislature might use to make its intent known than those it did in subdivision (c)(2).

Additionally, section 667(f)(2) does not come into play for the simple reason that the prosecuting attorney did not make a motion to strike the serious felony prior.   Nor, in our opinion, could he have appropriately done so in this case.   As noted above, the defendant here admitted the prior serious felony at the July 1994 hearing.   That having been done, the prior was both “pled and proved” and, as a consequence, subdivision (c)(2)'s mandate thereupon became absolute;  put another way, there was no way in which the prior conviction could then have been stricken, prosecutor's motion or not.⁴

The applicable line of authority is, therefore, that which deals with the interpretation and application of statutory preclusions of probation, i.e., People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 and its progeny.  Tanner held that, where the language of a criminal statute or the clear legislative meaning underlying it (or both) evince an intent to deny probation to a particular type of felon, a court may not accomplish that same result by the device of striking a particular allegation of the information under the more general grant of authority of section 1385.   Tanner pointed out that probation was a statutory creation in the first place and, hence, can always be removed by the Legislature.   It next observed that the statute pertinent in that case had a legislative history which rather clearly evinced an intent to deny probation to defendants who used firearms in the commission of certain crimes.   Finally, it noted the very basic rule that a later more specific statute will always control over an earlier more general one (there, as here, § 1385).

Tanner's principle has been followed without exception in a significant number of cases including People v. McGuire (1993) 14 Cal.App.4th 687, 18 Cal.Rptr.2d 12;  People v. Cowan (1987) 194 Cal.App.3d 756, 759, 239 Cal.Rptr. 796;  People v. Pacheco (1985) 176 Cal.App.3d 100, 102–103, 221 Cal.Rptr. 369;  People v. Hesslink (1985) 167 Cal.App.3d 781, 792–794, 213 Cal.Rptr. 465;  People v. Ibarra (1980) 114 Cal.App.3d 60, 170 Cal.Rptr. 440;  and People v. Cooper (1979) 95 Cal.App.3d 844, 157 Cal.Rptr. 348.   Its principle was recently reaffirmed, if not bolstered, in People v. Thomas (1992) 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159.   There, our Supreme Court made clear that the general grant of authority given trial courts in section 1385 must always give way where the legislative intent is to the contrary.   It said:  “[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, 24 Cal.3d at pp. 519–521 [156 Cal.Rptr. 450, 596 P.2d 328] [specific language of section 1203.06 barring probation contained sufficient indicia of legislative intent to preclude judicial exercise of discretion under section 1385];  see also People v. Dillon (1983) 34 Cal.3d 441, 467 [194 Cal.Rptr. 390, 668 P.2d 697] [deletion of provision indicates legislative intent to change law].)”   (People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

Here, there cannot be any question that, in enacting section 667(c)(2), the legislative intent was to deny probation to felons previously convicted of a serious or violent felony.   There is, first of all, the clear words of the statute.   Second, there is the explicit statement in the first four words of section 667(c) that it shall apply “[n]otwithstanding any other law ” (italics supplied).⁵  Third, there are in the statute not one but two references to the Legislature's intent “to ensure longer prison sentences and greater punishment” for defendants with prior violent or serious felony convictions.  (§ 667(b).)   Fourth and finally, the Legislative Counsel's Digest of Assembly Bill No. 971 contains a statement reiterating that the bill “would ․ provide ․ that probation shall not be granted nor shall the execution or imposition of sentence be suspended if the defendant has a prior felony conviction.”  (Legis. Counsel's Dig., Assem. Bill No. 971 (1993–1994 Reg.Sess.).)

The defendant and Justice Kline purport to find a contrary legislative intent, i.e., an intent to permit a trial court to effect probation under section 1385, from the mere mention of that section in section 667(f)(2).   We emphatically disagree.   In the first place, section 667(f)(2) does not reference section 1385 regarding what the trial court may do, but only regarding what a prosecutor may do.   In the second place, the mention of section 1385 in section 667(f)(2) is clearly only by way of a “a proviso, i.e., an exception to or limitation on the operation” of the prosecutor's duty to plead and prove priors.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735–736, 248 Cal.Rptr. 115, 755 P.2d 299.)  “As such, it is to be strictly construed․  [P]rovisos are ‘qualifiers, not nullifiers.’ ”  (Id. at p. 736, 248 Cal.Rptr. 115, 755 P.2d 299, citations and footnote omitted.)

It is simply not realistic to suppose that the Legislature (and, later, the electorate) undid all that the Three Strikes law was intended to accomplish by the inclusion of a reference to section 1385 in that part of section 667(f)(2) dealing with prosecutorial discretion.   As previously noted, section 667(b) states that the purpose of the new law is to ensure longer sentences;  both subdivisions (c) and (f) provide that the new law must be followed “notwithstanding any other law.”   If the defendant's reading of section 667(f)(2) is correct, these provisions would be meaningless.   All of this would seem to make clear that the principle of Tanner and its progeny is fully applicable here.  Section 667(c)(2) makes manifest that a once-convicted felon such as this defendant cannot be given probation “[n]otwithstanding any other law.”   We reject any contention that section 667(f)(2)'s proviso regarding what a prosecuting attorney may do overrides that language.

D. Section 667(f)(2) and the “Separation of Powers” Issue

 Assuming, arguendo, that reference to section 667(f)(2) is in any way necessary, the issue then becomes whether that provision is constitutionally invalid under the doctrine of separation of powers and our Supreme Court's decision in People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.⁶

In Tenorio, the defendant was convicted of possession of marijuana and admitted a prior conviction of the same offense.   In such circumstances, although a mandatory minimum sentence was required, the trial court dismissed the prior conviction without the prosecutor's approval in direct violation of statutory language that read:  “ ‘[N]o 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 pp. 90–91, 89 Cal.Rptr. 249, 473 P.2d 993.)

The Supreme Court, in upholding the trial court's action and declaring the statute unconstitutional, wrote:  “The history from and after the 1850 Legislature, however, is clear:  No decision, and no legislation, prior to the adoption of section 11718 denied that the judiciary has that power to dismiss which was originally codified in the forerunner of section 1385.   The prosecutor has never been able to ‘exercise’ the power to dismiss a charged prior—he has only been able to invite the judicial exercise of that power․  [S]ection [11718] itself recognizes that the dismissal power 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 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.” ⁷  (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   In so holding, the Supreme Court reversed its earlier opinion in People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641.

For three reasons, we believe that Tenorio is not controlling here.   First, at least three subsequent cases interpreting (and validating) later statutory developments have substantially if not totally eroded its viability.   To begin with, Tanner itself substantially undercut much of Tenorio;  it is not coincidental that the only citation one finds in Tanner to Tenorio is in former Chief Justice Bird's dissent.   In it, she candidly recognized that the majority view in Tanner necessarily undercut the Tenorio holding that the power to strike priors is “ ‘an essential part of the judicial power’ [citation] vested by the Constitution exclusively in the courts” and a power which “could not be overruled or curtailed by ․ another branch of government.”  (People v. Tanner, supra, 24 Cal.3d at pp. 574–575, 156 Cal.Rptr. 450, 596 P.2d 328.)

The next significant case is People v. Valencia, supra, 207 Cal.App.3d at p. 1045, 255 Cal.Rptr. 180, in which, as already noted, the court upheld the constitutionality of section 1385(b), which explicitly restricted the authority of trial courts to strike prior convictions of serious felonies when imposing an enhancement under what is now section 667(a).   Notwithstanding the fact that Tenorio was supposedly a seminal case on the subject of a trial court's powers under section 1385 and the supposed “inherent powers” of the court regarding striking priors, the court in Valencia never even cited Tenorio.⁸

Lastly, we note again the very recent decision of our Supreme Court in People v. Thomas, supra, 4 Cal.4th at pp. 209–214, 14 Cal.Rptr.2d 174, 841 P.2d 159, where the court sustained the validity of an amendment to section 1170.1(h) deleting any reference in that section to a section 12022.5 firearm enhancement allegation.   Despite the fact that the Legislature had not referred specifically to section 1385 in its amendment, the court nonetheless held that the effect of the amendment was to preclude the use of section 1385 as a basis for striking such an allegation.   Again notable by its omission was any reference to Tenorio.⁹

All of this simply goes to demonstrate that, contrary to the situation which obtained when Tenorio was decided a quarter of a century ago, in recent years the authority of trial courts under section 1385 has been repeatedly limited by statute and these statutes have been almost universally upheld, often with nary a nod in the direction of Tenorio much less Justice Schauer's dissent in Sidener.   This is, we suggest, hardly the stuff of which an “essential part of the judicial power” is made.

The second reason for doubting the continuing impact of Tenorio is that the rationale of that decision seems dubious in at least two respects.   First of all, the statute in question in Tenorio was ruled unconstitutional because it vested “in the prosecutor the power to foreclose the exercise of an admittedly judicial power by an appropriate judicial officer.”  (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   This argument depends, of course, upon the characterization of the dismissal power as “an admittedly judicial” one.   We suggest that the task of identifying to which branch of government a particular power belongs is at best problematic.  “ ‘The doctrine [of separation of powers] has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another.   Thus, although the ascertainment of facts based upon evidence taken in the course of a formal hearing is normally associated with an exercise of the judicial power, it may be entirely proper in the exercise of legislative or executive power [citations]․  Similarly, although it is normally the duty of the legislature to make the determinations of fact upon the basis of which legislation is to become effective, that duty may properly be devolved upon members of the executive branch of the government.  [Citations.]’  ․ (Parker v. Riley (1941) 18 Cal.2d 83, 89–90 [113 P.2d 873].)   Indeed, as a leading commentator on the separation-of-powers doctrine has noted:  ‘From the beginning, each branch has exercised all three kinds of powers.’  (1 Davis, Administrative Law Treatise (2d ed. 1978) § 2:2, p. 63.)”  (Davis v. Municipal Court (1988) 46 Cal.3d 64, 76, 249 Cal.Rptr. 300, 757 P.2d 11, italics omitted.)

If a power were so inherently judicial that the executive branch may not exercise it or the Legislature limit it, we would expect to find evidence of that in either the Constitution itself or in common law.   As regards the power of dismissal, no such evidence exists, including in the two constitutional provisions upon which Tenorio relies.  Article VI, section 1, of the California Constitution makes no mention of the power of dismissal;  it simply provides that the state's judicial power resides in the various courts, but does not in any way specify of what that power consists.   Nor does article III, section 3, help at all;  that section merely states, and in very general terms, the principle of separation of powers.

At common law, the trial court did not have a unilateral power of dismissal.   (People v. Bruzzo (1864) 24 Cal. 41, 51.)  “Nolle prosequi” was the term used for a formal record entry representing a prosecutor's decision to terminate prosecution.  (See Black's Law Dict. (6th ed. 1990) p. 1048, col. 2.)   At common law, the prosecutor had unrestricted authority to enter nolle prosequi without consent of the court at any time before a jury was impaneled.  (See United States v. Salinas (5th Cir.1982) 693 F.2d 348, 350.)

We are mindful of Justice Schauer's dissent in Sidener, relied upon by Justice Peters in Tenorio and our dissenting colleague here, including the historical analysis in that dissent.   In it, Justice Schauer argued that the state of the common law in 1849 was irrelevant because, prior to passage of the Constitution, California was governed by Mexican law.   (People v. Sidener, supra, 58 Cal.2d at p. 658, 25 Cal.Rptr. 697, 375 P.2d 641.)   However, the logical extension of this argument is that the inherent powers of the three branches of the constitutional government are as contemplated by Mexican law prior to 1849, and this simply cannot be.   Even Justice Schauer conceded that the California Constitution was modeled on those of other common law jurisdictions.  (Id. at pp. 660–661, 25 Cal.Rptr. 697, 375 P.2d 641.)   Further, in its first session, the Legislature declared:  “ ‘The Common Law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of the State of California, shall be the rule of decision in all the Courts of this State.’  ․ (Stats.1850, ch. 95, p. 219.)”  (Ibid., italics and footnote omitted.)   In discerning the meaning of “judicial powers,” therefore, the common law sense of that term would seem to be the most relevant;  as already noted, it does not include the power of dismissal.

But it is the next historical event which seems the most important for present purposes:  in 1872, the Legislature enacted section 1385, permitting the court to dismiss an action in the furtherance of justice upon application of the prosecutor or on the court's own motion.   At the same time, the Legislature enacted section 1386, eliminating the prosecutor's common law right of nolle prosequi in California.¹⁰

We conclude from this history that, contrary to the implications of Tenorio, the power of dismissal does not reside inherently with the judiciary.   While dismissal has been an exclusively judicial power in California since statehood, it has been so only by virtue of legislative enactment.   We find support for this conclusion in People v. Valencia, supra, 207 Cal.App.3d 1042, 255 Cal.Rptr. 180, which upheld the Legislature's complete deprivation of the judiciary's dismissal power in the context of section 667(a) enhancements.  (See § 1385(b).)  Section 667(f)(2) implicitly limits the court's power of dismissal “in furtherance of justice” to only those occasions when the prosecutor so moves.   As such, it is fundamentally similar to section 1385(b);  if section 1385(b) is valid (as Valencia held it was), for the same reasons so is section 667(f)(2).   Or, to put matters another way, if the Legislature can completely deprive the court of its dismissal power, so too can it limit it.

There is yet one other problem with the Tenorio rationale.   The Tenorio court stated:  “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.”  (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   While generally true, this statement advances the discussion very little.   The executive, not the judiciary, has the power to make criminal allegations.   Thus, the court cannot sentence on any matter not initially alleged and then proved by the prosecutor.   Furthermore, the court must sentence on all matters proved, unless the power to dismiss or strike has been afforded it by the Legislature.   Finally, the court may sentence only as prescribed by the Legislature, neither more nor less.   Thereafter, the executive branch, specifically the governor, retains the power of pardon and commutation.  (Calif. Const., art. V, § 8, subd. (a).)  As a further example, once charges are filed, the court's power to accept a guilty plea and sentence a defendant on lesser or fewer charges is conditioned upon the prosecutor's assent.   Although the determination of guilt and sentencing is fundamentally judicial, it is not exclusively judicial but is limited by (or, as the Tenorio court would have it, conditioned upon) the actions of both the legislative and executive branches.

Our Supreme Court has noted that “ ‘[the] primary purpose [of the separation-of-powers doctrine] is to prevent the combination in the hands of a single person or group of the basic fundamental powers of government.   [Citations.]’ ”  (Davis v. Municipal Court, supra, 46 Cal.3d at p. 76, 249 Cal.Rptr. 300, 757 P.2d 11.)  Section 667(b) through (f) does not offend this purpose.   Here, the Legislature has prescribed the underlying crimes, designated which of those constitute qualifying convictions, and set forth the sentencing range.   The court retains its function of overseeing the determination of guilt and, in some cases, of actually making that determination.   The court must insure that a defendant is not punished redundantly in violation of section 654 and is also called upon to exercise its discretion when a defendant is convicted of a crime or enhancement that carries a sentencing range and when the prosecutor moves to dismiss a qualifying conviction.   The prosecutor, representing the executive branch, makes the initial charging decision, directs the process of proving the charges, must halt that process or any part thereof when proof is lacking, and may, under this statute, move to dismiss qualifying convictions in the furtherance of justice.   In short, a defendant convicted and sentenced under this statutory scheme has clearly not been subjected to a process dominated by one branch of government to the exclusion of the others.

Finally with respect to the authority of Tenorio, it is noteworthy that the statute struck down there directly interfered with what had been, up to that time, fairly unfettered judicial power under section 1385.   First and foremost, section 667(f)(2) does not grant any additional power to the prosecutor.   What it does do is limit the exercise of the prosecutor's discretion to move to strike a prior under section 1385.   A review of the combination of sections 667(f) and (g) makes clear that those sections keep the prosecutor on a “short leash” in this regard;  those officials are now required to plead and prove all priors;  they are prohibited from using priors in plea bargaining;  and they may not agree to strike or seek the dismissal of prior felony allegations.   The only discretion allowed the prosecution is that provided in section 667(f)(2) under which it may move to dismiss or strike a prior felony conviction either if there is insufficient evidence or in the furtherance of justice as defined in section 1385(a).   The power of the court, acting independently, is only to dismiss the prior in the event of insufficient evidence.   Thus, when all is said and done, it is clear that, unlike Tenorio, what the Three Strikes statute does is restrict the section 1385 power of both courts and prosecutors, although admittedly prosecutors less than the courts.   In short, this is simply not the sweeping “veto power” issue with which the court was faced in Tenorio.

In sum, we disagree with the arguments of defendant (and our dissenting colleague) regarding section 667(f)(2) and the separation of powers argument because (a) we believe Tenorio has been substantially eroded and is now of dubious viability, (b) there is nothing in the constitutional provisions cited in Tenorio which even remotely makes the courts the sole and permanent repository of authority to strike priors and, therefore, nothing to preclude the Legislature from doing what it did here, i.e., permit the court to strike a prior only as and when a prosecutor has so moved, and (c) in any event, the statutory provisions at issue there versus those at issue here make Tenorio distinguishable.¹¹

E. The Severability Clause

 Assuming, arguendo, and contrary to the argument in part III, C, ante, that section 667(f)(2) is necessarily implicated in this case and, contrary to the argument in section III, D, ante, that that section is constitutionally invalid under the separation of powers doctrine, in our view the petition should still be granted because, under the clear language of section 667(i), section 667(f) is severable from the remainder of the statute.  Section 667(i) provides:  “If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.”

This provision could not be any clearer.  Section 667(c) can clearly “be given effect” without any reference to section 667(f) if the latter provision has a constitutional infirmity.   The former is “grammatically, functionally, and volitionally separable” from the rest of the statute, and thus can and should be given effect.  (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 355, 276 Cal.Rptr. 326, 801 P.2d 1077.)

F. The Issue of “Cruel and Unusual Punishment”

 The principal point relied upon by the trial court as its basis for not following the mandate of section 667(c), i.e., that by so doing it would violate the “cruel and unusual punishment” provisions of the federal and California constitutions, provides even less basis for departing from the statute.   Indeed, with regard to the federal constitutional standard, it is sufficient to cite only one case, Harmelin v. Michigan (1991) 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836, to demonstrate that the federal standard could not conceivably be a bar to the application of section 667 in the present case.

In that case the United States Supreme Court upheld a mandatory life sentence without possibility of parole for a defendant whose only conviction involved possession of 672 grams of cocaine.   In so ruling, the court majority effectively disapproved of any prior authority which may have implied that the Eighth Amendment's proscription against cruel and unusual punishment includes any “proportionality guarantee.”  (Harmelin v. Michigan, supra, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836.)   See also Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, where the court upheld a life sentence imposed under a Texas recidivist statute on a defendant convicted of obtaining $120.75 by false pretenses, and whose two prior convictions involved passing a forged check and fraudulent use of a credit card to obtain, in each instance, less than $100.   The court reasoned that the primary purpose of recidivist statutes is to deter repeat offenders and then segregate them from the rest of society;  it held that the duration of recidivist prison sentences under such statutes is properly left to the discretion of the individual states.  (Id. at p. 284, 100 S.Ct. 1133, 63 L.Ed.2d 382.)

The analysis under the California Constitution, as with the federal standard, is made in full view and consideration of the doctrine of separation of powers.   The starting point is, of course, the axiom that it is the distinct role of the Legislature to define crimes and prescribe the punishment therefor.  (People v. Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697, citing In re Lynch, supra, 8 Cal.3d at p. 414, 105 Cal.Rptr. 217, 503 P.2d 921.)  “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.   [Citations.]”  (People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)   Successful challenges to proportionality are an “exquisite rarity” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 2 Cal.Rptr.2d 714), and it is against the backdrop of these principles that we must “emphasize the considerable burden a defendant must overcome in challenging a penalty as cruel and unusual.”  (People v. Wingo, supra, 14 Cal.3d at p. 174, 121 Cal.Rptr. 97, 534 P.2d 1001.)

The Supreme Court adhered to these principles in Lynch by noting that the Legislature is accorded the “broadest discretion possible” in specifying punishment, and stated that for such legislatively prescribed punishment to be cruel and unusual it must be so disproportionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch, supra, 8 Cal.3d at pp. 414, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   In determining whether punishment is unconstitutionally disproportionate, the Court pointed to “certain techniques” used in prior cases that consider (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (id. at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921), (2) a comparison of the “challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” (id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921, emphasis in original), and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.”  (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921.)

The latter two Lynch techniques are of little use to the defendant in this case.   The briefs on behalf of the defendant fail to show a persuasive disproportionality in comparison to other statutes in California or elsewhere.   Indeed, we think that no such disproportionality is present.   This defendant is subject to the same sentencing requirement as every other recidivist with either one prior “serious” or “violent” felony conviction.   It should also be borne in mind that the length of each and every sentence under new section 667 takes into account the nature of the offense at bar as well as any prior convictions.

Here, the defendant primarily relies on the first Lynch technique—the “nature of the offense and/or offender” as compared to the “degree of danger both present to society”—to argue that his offense was too insignificant to warrant prison time.  (In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   However, we note first of all that the offense did reveal some degree of planning;  this was not a case of residue which the defendant had inadvertently forgotten to clean from his pocket.

Moreover, in his effort to characterize the offense as trivial, defendant downplays its recidivist nature.   The present conviction was defendant's fourth separate felony conviction, and the record indicates his background is riddled with numerous misdemeanor convictions as well.   Additionally, the record indicates that defendant has never successfully completed a formal probation grant.   Recidivism in the commission of multiple felonies has been recognized as a danger to society sufficient to justify denial of probation.   (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.)

Finally, and as already noted in another context, it was clear that the intent of the Legislature in enacting section 667 was to “ensure longer prison sentences and greater punishment” for recidivist offenders who have been previously convicted of felonies described in the statute.  (§ 667(b).)   As previously stated, it is the role of the Legislature to prescribe the punishment for crimes.   A defendant must overcome a considerable burden in showing that punishment is so cruel and unusual that it “shocks the consciousness and offends fundamental notions of human dignity.”  (People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38, 194 Cal.Rptr. 390, 668 P.2d 697, quoting In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   This is particularly so when the punishment in question derives from enactments which, respectively, passed the Legislature and then the entire body politic overwhelmingly.

Indeed, we think that no disproportionality in sentencing is present.   This defendant is subject to the same sentencing requirement as every other recidivist with either one prior “serious” or “violent” felony conviction.   Further, the length of any sentence under the new section 667 takes into account the nature of the offense at issue as well as any prior convictions.

G. Conclusion

It is clear that the trial court genuinely felt that this defendant was deserving of probation.   It expressed its views in that regard movingly and eloquently.   However, those views led it, in our opinion, to disregard the clear legislative prohibition on the grant of probation found in section 667(c).   Whether or not the public policy decisions embodied in the “Three Strikes” law as a whole and its subdivision (c) in particular are the most appropriate ones is not the concern of the judicial branch of government.   If people (including judges) feel those provisions are inappropriate or, in certain circumstances, lead to unfair results, the law can be changed.   But those who wish to effect such change should follow the many political avenues available to do so, not seek or countenance judicial eviscerations of the statute.

In both the preceding discussion and Justice Kline's dissent there are several references to Justice Schauer's dissenting opinion in People v. Sidener, supra, 58 Cal.2d at pp. 652, 25 Cal.Rptr. 697, 375 P.2d 641 et seq.   Thus, our discussion of this case would not be complete without a quotation from the majority opinion in that case, an opinion written by one of California's foremost legal minds, former Chief Justice Roger Traynor.   He wrote in Sidener:  “Courts are not the only public agencies constitutionally empowered to determine the punitive consequences of recidivism.”  (Id. at p. 648, 25 Cal.Rptr. 697, 375 P.2d 641.)

This observation is particularly pertinent in view of the debate in this and similar cases.   In enacting A.B. 971 in 1994, another “public agency,” namely the California Legislature, made very clear its view—right or wrong—that felons who have previously been convicted of a violent or serious felony may not get probation.   Our Legislature was, after all, directing its attention to the very real problem of recidivism and not to, e.g., whether a person who somehow smuggles marijuana into a county jail ought to spend a significant amount of time in state prison.   And its attention to the problem of recidivism recalls to mind the U.S. Supreme Court's discussion of precisely that subject in Rummel v. Estelle, supra, 445 U.S. at pp. 284–285, 100 S.Ct. at pp. 1144–1145:  “The purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries.   Its primary goals are 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.”

The “punishing jurisdiction” in this instance is California, and the people in charge of mandating punishments in this state are our legislators.   Their efforts to deal with the recidivism problem should not be hamstrung by reliance on a supposed “inherent judicial power.”

IV. DISPOSITION

The petition for a writ of mandate is granted.

Ignoring the clear language of the “three strikes” law, the majority permits the traditional judicial power to strike a prior felony conviction “in furtherance of justice” pursuant to Penal Code section 1385 ¹ to be made subservient to the will of a prosecuting attorney.   This constitutionally impermissible emasculation of trial judges will not achieve the purposes of the “three strikes” law but will instead dehumanize the judicial system, demoralize conscientious judges, and undermine respect for the criminal justice system.   If the sentences of minor non-violent offenders who pose no danger to society can be judicially mitigated by judges only with the consent of prosecuting attorneys, the resulting disparities and unfairness will likely subject our criminal justice system to much more deserved obloquy than it has heretofore received for the excessive leniency judges are erroneously thought to have shown.²

The Legislature, which prescribes criminal penalties, does so only with respect to classes of persons.   The application of legislatively prescribed penalties, which is the judicial function, occurs not with respect to classes of persons but individual offenders.   The Legislature can, of course, limit the power of judges to depart from prescribed penalties.   What the Legislature cannot do is to transfer any aspect of the judicial responsibility to apply prescribed penalties in a particular case to an official of another branch of government, least of all to one whose responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate.  (Coolidge v. New Hampshire (1971) 403 U.S. 443, 449–453, 91 S.Ct. 2022, 2029–2031, 29 L.Ed.2d 564, modified on other grounds in Horton v. California (1990) 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112.)   Once criminal charges have formally been lodged and the judicial process has commenced, the district attorney, a member of the executive branch, cannot constitutionally have discretion to restrict the ability of the trial judge to fashion sentence.   The “three strikes” law does not bar judges from exercising their traditional authority to dismiss actions and strike priors under section 1385, as the majority claims;  it perpetuates that power but impermissibly conditions its exercise on the approval of a prosecuting attorney.

I.

Preliminarily, it is useful to note certain facts not fully set forth in the majority opinion.   At the time of the instant offense, Missamore was an unemployed auto mechanic with a wife and six-month-old child who were receiving welfare assistance.   Aside from his convictions for receiving stolen property and residential burglary, which occurred more than a decade ago, and the theft of a car in 1989, Missamore's prior criminal history involved only minor offenses.   His most recent prior was a 1993 misdemeanor conviction for disturbing the peace (§ 415), which resulted from his refusal to follow the directions of a “teen traffic monitor” while driving from a 4th of July celebration.   The probation report quotes Missamore's parole agent as stating that petitioner ordinarily “did fine on parole,” although, as the disturbing the peace offense indicated, he sometimes displayed a “lack of common sense.”

The probation report states that at the time he committed the petty theft of groceries that led to his incarceration, “financial pressure on him had become overwhelming.   He had been laid off from work, and his wife had suffered disabling injuries in an auto accident.   This change in his situation occurred after he had maintained two jobs while on parole, and felt he was really turning his life around.   Things got so bad that after their lease expired, [Missamore] was sleeping in a truck, and his pregnant wife stayed at a shelter until a lump sum disability payment arrived.   Now he feels ‘pretty damned embarrassed’ and says, ‘I'm not too happy about what I've done.’   Regarding the marijuana found in his possession, he stated, ‘I've got a habit.   I had it, and I was going to smoke it.   It wasn't very bright for someone who only had to serve a few days.   But it relaxes me, and I was under a lot of stress.’ ”   Missamore never received counseling for his long-standing alcohol and substance abuse problems.

Acknowledging Missamore's numerous prior convictions and earlier failures to perform successfully on formal probation, the probation report lists numerous favorable factors:  (1) that the instant offense “was substantially less serious than other crimes similarly charged,” noting that the maximum punishment for possession of 8 grams of marijuana when out of custody is merely a $100 fine;  (2) that he completed his most recent period of parole supervision successfully;  (3) that “[h]e has expressed a willingness to comply with probation conditions, and wishes to remain in custody until bed space becomes available, and then enter Turning Point, a long-term treatment program”;  (4) that “[h]e is in good health, has local family ties, and apparently has employable work skills”;  (5) that “imprisonment would likely have a detrimental effect on his dependents”;  (6) that he expressed remorse;  and (7) that “[t]here is little likelihood that if not imprisoned [he] will be a danger to others.”   The probation report also points out that Missamore “has no recent record of committing similar crimes or crimes of violence ․ [and] [t]here is a high likelihood [he] would respond favorably to residential drug treatment, which would be required as a condition of probation.”

Although the probation department concluded that “this offense does not merit a CDC commitment,” and that probation eligibility could be justified under section 1203, subdivision (e)(4), and rule 413 of the California Rules of Court, the department felt legally bound to recommend a prison commitment because, in its view, section 667, subdivision (b)(2) “still absolutely prohibits a probation recommendation on our part.”

Explicitly adopting as its own the many factors justifying probation enumerated in the probation report, the trial court found this to be an “unusual case[ ] where the interests of justice would best be served if the person is granted probation.”  (§ 1203, subd. (e)(4).) ³

II.

As the majority opinion explains, the trial court concluded that under section 1385 it “has inherent power to strike priors on its own, even though over the objection of the prosecutor.”   The court believed it also retained “the discretionary power to dismiss a prior conviction in the furtherance of justice under Penal Code section 667,” and that “exercise of this right and power is not subject to prosecutorial control, and is independently vested with the trial court by virtue of the separation of powers doctrine.”

Petitioner's theory that this case presents no separation-of-powers problem essentially rests on the contention that the judicial power allegedly encroached upon by the “three strikes” law—i.e., the power to dismiss and strike prior felony convictions in the interests of justice—“simply has not been granted in the first place.”   This contention is blind to the fact—which is central to this case—that the “three strikes” law acknowledges and reaffirms the exclusive power of the trial court to dismiss and strike prior felony conviction allegations in the interests of justice.   It is true that the “three strikes” law permits the judicial power to strike or dismiss under section 1385 to be exercised only when the prosecuting attorney requests that the power be used, but this is merely a conditional, not a complete, restriction.   Indeed, the alternative sentencing scheme prescribed by the “three strikes” law cannot be fully realized if trial judges were truly denied this power, for that would effectively deprive prosecuting attorneys of the power to move to dismiss or strike prior felony convictions, a power the Legislature unmistakably intended them to have.  (§ 667, subd. (f)(2).)   If the Legislature wished prosecuting attorneys to be able to determine on their own whether to drop prior felony conviction allegations, it would not have required such convictions to be pled and proved (§ 667, subd. (f)(1)) and prohibited the use of prior felony convictions in plea bargaining (§ 667, subd. (g)), as it did.

General judicial authority to dismiss or strike prior convictions arises under section 1385, which provides in material part that “[t]he judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”  (§ 1385, subd. (a).)  As noted in People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, “[a] long line of decisions, stretching over nearly 30 years, has 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.”  (Id., at pp. 229–230, 219 Cal.Rptr. 460, 707 P.2d 833, fn. omitted.)

Petitioner's claim that, notwithstanding section 1385, a superior court judge lacks discretion to grant probation in a case such as this is based on section 667, subdivision (c)(2), which declares that “[n]otwithstanding 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 ․ [p]robation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.”  (Italics added.)   Petitioner maintains that subdivision (c)(2) “flatly prohibits” the grant of probation to a person, such as Missamore, who has been convicted of a prior serious or violent felony.

My colleagues accept petitioner's view because the probation ineligibility clause of section 667, subdivision (c) commences with the phrase “[n]otwithstanding any other law․ ”  (Maj. opn., p. 396, fn. 5, italics in original.)  “Notwithstanding any other law” does not, however, mean “notwithstanding any other provision of this law.”  The exception that renders the probation ineligibility clause of subdivision (c)(2) presumptive rather than absolute arises not under some “other law” but under another subdivision of the very same statute.   Subdivision (f)(2) of section 667, which grants prosecutors the power to move to strike or dismiss a prior felony conviction under section 1385, must be deemed legislative acknowledgment of the continuing and exclusive power of trial judges to actually do that which the prosecuting attorney asks, as well as to refuse to do so.   The point is that only the trial court is empowered to make the ultimate determination.   As our Supreme Court stated more than a century ago, “[i]t is clear ․ ‘the court’ alone has the power to dismiss a criminal action.”  (People v. Ward (1890) 85 Cal. 585, 590, 24 P. 785.)  “At most, the [district attorney's] motion for a dismissal is merely a recommendation to the court.   If the court, for any reason, differs with the district attorney ․ there can be no doubt that the court has a full right to refuse such dismissal.”  (People v. Smith (1925) 76 Cal.App. 105, 111–112, 243 P. 882.)

In short, the majority's insistence that nothing in the California Constitution “even remotely makes the courts the sole and permanent repository of authority to strike priors” (maj. opn. at p. 401) is besides the point, because the California Legislature has made the courts the sole repository of such authority.

Petitioner's argument that subdivision (c)(2) supersedes the general grant of judicial power to dismiss or strike priors under section 1385, which the majority accepts, relies heavily but unjustifiably on People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328.   In Tanner the jury found that the defendant was guilty of robbery and had used a firearm in the commission of the offense.   However, in contravention of section 1203.06, which prescribed a mandatory prison sentence for those who use a firearm in the commission of a robbery and certain other serious offenses, the trial court suspended execution of sentence and placed defendant on probation for five years by striking the use of firearm allegation “in furtherance of justice” pursuant to section 1385.   The Supreme Court concluded this was error, holding that the 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.   The court relied on legislative history indicating “that trial court discretion to grant probation in unusual cases is eliminated so that ‘probation and suspension of sentence would be denied, without any exception in unusual cases in the interests of justice, to any person who uses a firearm during the commission of various felonies, including ․ robbery․”  (Id., at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328, italics in original, citing Leg. Counsel's Dig. of Sen. Bill No. 278, 1 Stats. 1975 (Reg.Sess.) Summary Dig., ch. 1004, p. 262.)   The Tanner court contrasted the bar of section 1203.06, which provided for “no exception in the interest of justice or otherwise,” with section 1203, which, while presumptively denying probation for specified cases, expressly permitted an exception “in unusual cases where the interests of justice would best be served.’ ”  (Id., at pp. 519–520, 156 Cal.Rptr. 450, 596 P.2d 328, italics in original.)   The court additionally noted that the subsequently enacted specific bar of section 1203.06 prevailed over the earlier enacted general dismissal power provided in section 1385.

Petitioner argues that the present case is governed by Tanner because, as stated in the Attorney General's brief, “a specific mandatory probation ineligibility clause cannot be nullified by the general dismissal provision of section 1385.”   This argument misses the point.   The claim is not that the probation ineligibility clause of subdivision (c)(2) of section 667 is nullified by section 1385, but that it is compromised by another provision in the “three strikes” law itself permitting sentence mitigation.   Subdivision (f)(2) of section 667 provides that “[t]he prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to section 1385 ․”  It is this feature of the “three strikes” law that differentiates it from the statutes reviewed in Tanner and like cases, in which there were no such exceptions to the mandated prohibition, which were therefore truly absolute.

People v. Thomas (1992) 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159 does not support petitioner, as the majority maintains, but simply provides another useful example of the difference between an absolute prohibition and a presumptive bar.   The Supreme Court held in Thomas that by deleting section 12022.5 from the list of statutory enhancements that a trial court might, in its discretion, strike if sufficient “circumstances in mitigation” exist, the Legislature constitutionally deprived trial judges of the authority they would otherwise have under section 1385.   Similarly, in People v. Valencia (1989) 207 Cal.App.3d 1042, 255 Cal.Rptr. 180 the court upheld subdivision (b) of section 1385, which absolutely bars the striking of any prior conviction for a serious felony for purposes of sentence enhancement under subdivision (a) of section 667.   Unlike the merely presumptive bar of subdivision (c)(2) of section 667, there are no exceptions to the bar of subdivision (b) of section 1385 allowed by subdivision (a) of section 667.   The legislation reviewed in Tanner, Thomas and Valencia did not give prosecuting attorneys the discretionary power to allow trial court judges to exercise judicial authority they were otherwise denied.   This is the reason these and other cases sustaining the power of the Legislature to absolutely limit judicial power under section 1385 do not refer to nor implicate the doctrine of separation of powers.  (See, e.g., People v. Cowan (1987) 194 Cal.App.3d 756, 759, 239 Cal.Rptr. 796;  People v. Pacheco (1985) 176 Cal.App.3d 100, 102–103, 221 Cal.Rptr. 369;  People v. Hesslink (1985) 167 Cal.App.3d 781, 792–794, 213 Cal.Rptr. 465.)   The Supreme Court has allowed that the Legislature “could constitutionally remove the power to strike from the courts” (People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993)—as it did in the statutes reviewed in Tanner, Thomas and Valencia —but it cannot “vest in the prosecutor the power to foreclose the exercise of an admittedly judicial power by an appropriate judicial officer” (Ibid.)—which is exactly what the “three strikes” law seeks to accomplish.

Because the probation ineligibility clause of subdivision (c)(2) is qualified by the grant of judicial authority to dismiss and strike priors in the interests of justice under subdivision (f)(2), the former provision cannot be considered an absolute bar to the granting of probation.   Subdivision (f)(2) reflects a legislative realization that the “three strikes” law will on occasion cast its broad net over anomalous cases, involving neither violence nor any of the other factors ordinarily associated with serious felonies, as well as other extenuating circumstances, in which prohibiting lesser punishment would not serve the purpose of the “three strikes” law, that this would be unjust, and that the public perception of such injustices might eventually erode support for the new law.

Significantly, the probation ineligibility clause of subdivision (c)(2) is general in nature, whereas the exception to that bar set forth in subdivision (f)(2) is specific and limited, as it relates solely to those instances in which the prosecuting attorney believes a prior conviction allegation should be dismissed or stricken “in furtherance of justice pursuant to section 1385” and the trial court agrees.   As stated in Tanner, supra, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 “[a] specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates.”  (Id. at p. 521, 156 Cal.Rptr. 450, 596 P.2d 328;  accord, People v. Thomas, supra, 4 Cal.4th at p. 213, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

If the Legislature intended to absolutely prohibit the mitigation of sentence in such unusual cases, the most obvious place to express such a purpose would have been section 1385, the venerable source of judicial authority to dismiss or strike prior convictions, or at least through a reference to the inapplicability of that statute.   This is what the Legislature did in 1986, when in abrogated the holding of People v. Fritz, supra, 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833 by limiting judicial authority to strike priors as a means of avoiding sentencing enhancements for certain previous serious felony convictions.   The Legislature added subdivision (b) to section 1385, which states that “[t]his 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.”  (Italics added.)

As the Attorney General acknowledges, the “three strikes” law does not authorize the imposition of an “enhancement”—which the Rules of Court define as “an additional term of imprisonment added to the base term” (Calif. Rules of Court, rule 405(c))—but establishes an alternative sentencing scheme with new and different base terms.  (Cf., People v. Whitten (1994) 22 Cal.App.4th 1761, 1765–1766, 28 Cal.Rptr.2d 123;  People v. Burkett (1991) 1 Cal.App.4th 971, 975, fn. 3, 2 Cal.Rptr.2d 330;  People v. Decker (1988) 199 Cal.App.3d 694, 696–697, 245 Cal.Rptr. 40.)   As recently stated in People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707, “[e]ven though it uses the phrase ‘any other enhancement,’ section 667, subdivision (e)(1) does not provide for an additional term which is to be added to another term.   Rather, it defines a new term for the crime itself, a term which replaces the term which would have applied if [the defendant] had not been convicted of a serious or violent felony.   Therefore, the doubled term prescribed by section 667, subdivision (e)(1) is not an “enhancement” within the meaning of subdivision (b) of section 1385.”  (Id., at p. 547, 42 Cal.Rptr.2d 707, citing People v. Martin (1995) 32 Cal.App.4th 656, 666–668, 38 Cal.Rptr.2d 776;  People v. Rayford (1994) 9 Cal.4th 1, 8–10, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  and People v. Skeirik (1991) 229 Cal.App.3d 444, 466, 280 Cal.Rptr. 175.)

The enhancement specifically referred to in subdivision (b) of section 1385 is the five-year enhancement described in section 667 prior to enactment of the “three strikes” law, a provision which now comprises subdivision (a) of section 667.⁴  When it added subdivision (b) to section 1385 in 1986, the Legislature also amended the pre-“three strikes” language now contained in subdivision (a) of section 667 to make it clear that the enhancement certain convicted felons “shall receive” is “[i]n compliance with subdivision (b) of Section 1385․”  No similar reference to the bar of subdivision (b) of section 1385 appears in the subdivisions later added to section 667 as part of the “three strikes” law;  such as, for example, that which appears in section 1203.075, pertaining to persons who inflict great bodily injury on another in the commission of certain offenses.   Section 1203.075 provides that “[p]robation shall not be granted ․, nor shall the execution or imposition of sentence be suspended ․, nor shall a finding bringing the defendant within this section be stricken pursuant to Section 1385 ․”  (Italics added.)   The failure of the Legislature to clarify that the prohibition set forth in subdivision (b) of section 1385 applies not just to the “enhancement” described in subdivision (a) but the increased base terms prescribed by subdivisions (b) through (i) of section 667 later enacted as part of the “three strikes” law suggests the Legislature had no such intention.

Admittedly, as the Supreme Court stated in People v. Thomas, supra, 4 Cal.4th 206, 14 Cal.Rptr.2d 174, 841 P.2d 159, “it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”  (Id., at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   The “three strikes” law does, however, expressly refer to section 1385 in subdivision (f)(2) of section 667—but in the context of impliedly authorizing the dismissal or striking of a prior felony conviction by the court upon the motion of the prosecuting attorney.   If subdivision (c)(2) was intended by the Legislature to absolutely foreclose exercise of the judicial power to dismiss or strike a prior felony conviction—which is the way in which a court can grant probation to an otherwise ineligible defendant—a similar reference to section 1385 would have been the most effective way to express that intent.   Such a reference to section 1385 was not made in subdivision (c)(2) for the obvious reason that it would have barred judges from granting prosecutorial motions to dismiss or strike priors and therefore conflicted with subdivision (f)(2) and frustrated a legislative purpose.

The statement in the majority opinion that subdivision (f)(2) “does not reference section 1385 regarding what the trial court may do, but only regarding what a prosecutor may do” (maj. opn. at p. 396, italics in original) is chimerical.   The prosecutor may not meaningfully “do” that which subdivision (f)(2) allows—the filing of a motion to dismiss—unless the trial court has the authority to grant such a motion.

My colleagues seek to avoid the problem their interpretation creates by claiming that where a prior conviction has been both pled and proven subdivision (c)(2) bars striking the prior even if the prosecutor moves that this be done.  (Maj. opn., at p. 395.)   This view that the trial court's power to strike under section 1385 ends when the district attorney has proved a prior felony conviction has been persuasively refuted by Justice Grignon in her concurring opinion in People v. Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743.   As she points out, those who enacted the “three strikes” law never intended to prohibit the trial court from striking a prior felony conviction after it had been proved.  “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 prior qualifying felony conviction at any time prior to sentencing].)”  (People v. Williams, supra, 37 Cal.App.4th at 1748, 44 Cal.Rptr.2d 743, conc. opn. of Grignon, J.)

The contention that subdivision (c)(2) absolutely nullifies the judicial power to dismiss or strike under section 1385 is also refuted by the Supreme Court's opinion in People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.  Williams addressed the question whether, pursuant to section 1385, a trial court may dismiss a finding of special circumstances under the death penalty laws so that a sentence of life imprisonment without possibility of parole may be modified.   The trial court expressed a desire to dismiss the special circumstances finding, and thereby eliminate the “without possibility of parole” portion of the sentence, but determined that it lacked the necessary judicial authority because of certain limiting provisions in the death penalty statutes analogous to subdivision (c)(2) of section 667, such as a provision stating that “[t]he penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more ․ special circumstances has been charged and found․”  (§ 190.2, subd. (a), italics added.)   The Supreme Court remanded the case, determining that the court's power to dismiss had not been limited.   Reiterating that “ ‘the discretion of the judge [under section 1385] is absolute except where the Legislature has specifically curtailed it” (id., at pp. 480–481, 179 Cal.Rptr. 443, 637 P.2d 1029, quoting People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 446 P.2d 138), the court rejected the broad interpretation of Tanner urged by the Attorney General here.   As stated in Williams, “it is clear from the [Tanner ] opinion that the mere use of mandatory language in a statute does not indicate that section 1385 is inapplicable.   If it did, there would have been no need to consider the legislative history or intent.   Therefore, section 1385 is applicable in the absence of a specific indication by the Legislature to the contrary.”  (Id., at p. 483, 179 Cal.Rptr. 443, 637 P.2d 1029, italics added.)   As pointed out in People v. Ruby (1988) 204 Cal.App.3d 462, 251 Cal.Rptr. 339, Tanner “did not hold the ‘unequivocal language of section 1203.06 conclusively barred’ Penal Code section 1385 discretion.  Tanner relied on an analysis of the legislative history which the majority interpreted as conclusively showing the Legislature intended to preclude judicial discretion under Penal Code section 1385․  Thus, it was not the language of the statute, but its interpretation in light of legislative declarations of intent on which Tanner's holding is bottomed.”  (Id., at p. 466, fn. 4, 251 Cal.Rptr. 339.)

We do not need to consult the legislative history of the “three strikes” law to discern whether the Legislature intended to absolutely preclude judicial discretion under section 1385, because the legislation itself dispositively answers the question.   A statute which authorizes the dismissal or striking of a prior felony conviction in certain circumstances “in the furtherance of justice pursuant to section 1385” obviously does not absolutely preclude that judicial act.

III.

The trial court found the “three strikes” law violative of the constitutional doctrine of separation of powers because it believed the limitation on judicial authority imposed by subdivision (f)(2) materially indistinguishable from that stricken by the Supreme Court in its landmark decision in People v. Tenorio, supra, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993.   The trial court was correct.

Tenorio involved a challenge to former Health and Safety Code section 11718, which provided that in narcotics cases “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.”  (Italics added.)   In an earlier case—People v. Sidener (1962) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641—a four member majority rejected an argument that section 11718 violated provisions of the California Constitution which vest the judicial power in the judiciary and proclaim the separation of powers.   The unanimous court in Tenorio adopted the rationale of Justice Schauer's dissent in Sidener.   The Tenorio court agreed with Justice Schauer that the power to dismiss a prior is an essential part of the judicial power.   Health and Safety Code section 11718 “constituted an invasion of that power 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.’ ”  (Tenorio, supra, 3 Cal.3d at p. 93, 89 Cal.Rptr. 249, 473 P.2d 993, quoting Sidener, supra, 58 Cal.2d at p. 654, 25 Cal.Rptr. 697, 375 P.2d 641, dis.opn. of Schauer, J.)   The Tenorio court noted that a prosecuting attorney is not an impartial decision-maker but a “partial advocate” and that “vesting him with unreviewable power to preclude an order striking priors, ‘without any impartial tribunal to review his decision in the matter of sentencing, [would] do violence to our concept of constitutional government, and offends our oft repeated and proud boast that we are a government of law and not of men.’ ”  (Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993, quoting Sidener, supra, 58 Cal.2d at p. 675, 25 Cal.Rptr. 697, 375 P.2d 641, dis. opn. of White, J.)

The opinion in Tenorio observes that, like the “three strikes” law, former Health and Safety Code section 11718 “itself recognizes that the dismissal power 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 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 forego prosecution, as the decision to forego prosecution does not itself deprive persons of liberty.   [¶]․  The 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.   The judicial power must be independent, and a judge should never be required to pay for its exercise.”  (3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

The majority says that subdivision (f)(2) of section 667 is “basically different” from the statute reviewed in Tenorio because it merely “limit[s] the exercise of the prosecutor's discretion to move to strike a prior under section 1385.”  (Maj. opn. at p. 401 italics in original.)  “[W]hen all is said and done,” Justice Haerle maintains, “what the Three Strikes statute does is restrict the section 1385 power of both courts and prosecutors, although admittedly prosecutors less than the courts.”  (Id. at p. 401, italics in original.)   The idea that subdivision (f)(2) represents a limitation on prosecutorial discretion is—there is simply no other way to say it—preposterous.   This provision provides prosecuting attorneys a new power vastly greater than they have ever previously possessed:  the discretionary ability to prevent trial judges, and derivatively appellate judges, from exercising the authority they would otherwise possess to independently inquire whether the mitigation of a particular sentence is required by the interests of justice.   While judges would not exactly become potted plants if this power is eventually sustained by our Supreme Court, their ability to independently insure that justice is done would be materially constrained in a significant class of important criminal cases.   This “vest[ing] in the prosecutor the power to foreclose the exercise of an admittedly judicial power by an appropriate judicial officer” is precisely what was condemned in Tenorio.   (People v. Tenorio, supra, 3 Cal.3d at p. 94, 89 Cal.Rptr. 249, 473 P.2d 993.)   The constitutional problem is not eliminated by the fact that the court retains the power under subdivision (f)(2) to deny a prosecutor's motion to dismiss, because that was also true in Tenorio.   The constitutional problem in Tenorio, and the problem here, is the threshold power of the district attorney to determine whether a trial judge may even consider whether to exercise the judicial power that exists under section 1385.

The majority endeavors to buttress its fallacious premise that the “three strikes” law limits rather than expands prosecutorial power by pointing out that district attorney's “are now required to plead and prove all priors [and] are prohibited from using priors in plea bargaining.”  (Maj. opn. at p. 401.)   These alleged constraints are, first of all, analytically unrelated to the question whether subdivision (f)(2) permits prosecutors to frustrate a trial judge's desire to exercise his or her existing authority to strike a prior under section 1385.   Even if it is thought that subdivision (f)(2) was designed merely to relieve prosecuting attorneys of the new charging requirement imposed under subdivision (f)(1) or the prohibition on plea bargaining in subdivision (g), the effect of subdivision (f)(2) remains the same:  it gives prosecuting attorneys the discretionary ability to limit existing judicial authority.   If all the Legislature wanted to do was relieve district attorneys of the need to plead and prove prior felony convictions and abstain from plea bargaining, when appropriate in the interests of justice, it could have achieved those purposes without unconstitutionally invading the judicial domain.  (It is incidentally also worth noting that the pleading requirements and prohibition on plea bargaining the majority uses to show that the “three strikes” law limits prosecutorial power are openly and systematically ignored with impunity by many district attorneys, particularly in metropolitan counties, and are unenforceable.) ⁵

In People v. Bailey (1995) 37 Cal.App.4th 871 44 Cal.Rptr.2d 205 the majority concocted a different theory to prop up the delusion that subdivision (f)(2) does not contain a grant of power to the prosecution, and indeed actually limits the overall discretion of the prosecution.   According to the Bailey majority, “the thrust of [subdivision (f)(2) ] is not to grant to the People an arbitrary and unreviewable veto power over the judiciary.   Rather, it is a power given to the judiciary to insure that the prosecution does not use its power to move for dismissal in furtherance of justice except in a proper case.”  (37 Cal.App.4th at pp. 882–883, 44 Cal.Rptr.2d 205.)   This statement erroneously assumes that the long-standing judicial power to deny an unjustified motion to strike or dismiss was “given to the judiciary” by the “three strikes” law.   As subdivision (f)(2) acknowledges, trial judges already have that power under section 1385.   The fact that the “three strikes” law allows the court to deny an unjustified prosecutorial motion to dismiss or strike does not eliminate the separation of powers problem, as Tenorio clearly shows.

Conceding that a legislative grant of prosecutorial discretion may constitute an invalid encroachment on judicial authority if it enables a district attorney “to veto a decision made by a court after criminal charges [have] already been filed” (Davis v. Municipal Court (1988) 46 Cal.3d 64, 82, 249 Cal.Rptr. 300, 757 P.2d 11), petitioner claims that is not a problem here because the district attorney must exercise his discretion under subdivision (f)(2) in public view and the exercise of that discretion does not constitute a “veto” of a judicial decision.   Petitioner states the argument as follows:  “the fact that subdivision (f)(2) requires a prosecutor to exercise his discretion as to prior convictions in full view of the public cannot be equated with a prosecutorial veto of judicial power.   The ‘veto’ here rests not with the prosecution, but with the court.   Independent judicial power to strike priors has been withheld in the statute itself.   Therefore, that the prosecutor must exercise his discretion in the open, i.e.[,] after charging, simply does not attain the constitutional significance ascribed to the post-charging decisions discussed in Davis v. Municipal Court, supra, at pp. 82–86, 249 Cal.Rptr. 300, 757 P.2d 11.   None of those post-charging decisions involved statutes where judicial power had been legislatively denied.”

This argument makes no sense.   The distinction between pre-charging and post-charging prosecutorial discretion is not based on the theory that the former is less visible than the latter, as petitioner maintains, but on the ground that pre-charging decisions are necessarily made prior to the commencement of judicial proceedings.   Petitioner's confusing argument appears to result from a misreading of Davis v. Municipal Court, supra, and related cases pertaining to prosecutorial charging discretion.   In Davis the defendant was charged in the municipal court with grand theft, a “wobbler” offense (one which may be charged and punished as either a felony or a misdemeanor).   The offense was originally charged as a felony, but was reduced to a misdemeanor charge by the municipal court.  (§ 17, subd. (b)(5).)   However, a local rule precluded misdemeanor diversion for defendants charged with wobblers as felonies.   The defendant, prevented by the rule from obtaining misdemeanor diversion, alleged, among other things, that it permitted the executive branch to improperly infringe on the judicial power.   Because the diversion program granted the trial court the power to make the ultimate decision, the defendant claimed that the rule making eligibility turn on the prosecutor's decision to charge a wobbler as a felony or a misdemeanor constituted an impermissible encroachment on judicial authority.

The Supreme Court rejected this argument for several reasons.   As pertinent to the present case, the court emphasized that in Tenorio and the other separation of powers cases the defendant relied upon, “the challenged statutory provisions purported to give a prosecutor the right to veto a decision made by a court after criminal charges had already been filed.   None of the cases suggests that the exercise of prosecutorial discretion prior to the filing of such charges improperly subordinates the judicial branch to the executive in violation of the Constitution, even though the prosecutor's exercise of such charging discretion inevitably affects the sentencing or other dispositional options available to the court.”  (Davis v. Municipal Court, supra, 46 Cal.3d at p. 82, 249 Cal.Rptr. 300, 757 P.2d 11, italics in original.)   Thus Davis and other decisions addressing a Tenorio challenge in the pretrial diversion setting (People v. Superior Court (On Tai Ho ) (1974) 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405;  Sledge v. Superior Court (1974) 11 Cal.3d 70, 113 Cal.Rptr. 28, 520 P.2d 412) hold that a district attorney does not improperly exercise “judicial authority” in violation of the separation of powers doctrine “when he exercises his traditional broad discretion, before charges are filed, to decide what charges ought to be prosecuted, even when that charging decision affects the defendant's eligibility for diversion.”  (Davis, supra, 46 Cal.3d at p. 85, 249 Cal.Rptr. 300, 757 P.2d 11, italics in original.)   It is only “when a district attorney is given a role during the ‘judicial phase’ of a criminal proceeding [that] such role will violate the separation-of-powers doctrine if it accords the district attorney broad, discretionary decisionmaking authority to countermand a judicial determination.”  (Ibid.)

A district attorney's power to move to dismiss or strike priors under subdivision (f)(2) can by definition be exercised only during the “judicial phase” of criminal proceedings.   Read together, subdivisions (c)(2) and (f)(2) of section 667 mean that a court cannot grant probation to a defendant subject to the “three strikes” law by striking a prior felony conviction in the interests of justice unless the district attorney agrees such mitigated sentencing would be “in furtherance of justice pursuant to section 1385,” and files a motion to that effect.   This cannot be.   The power to dismiss priors, which only arises after the commencement of judicial proceedings, “has been deemed to be an integral part of the trial judge's sentencing discretion, and hence cannot be limited by a requirement of prosecutorial consent.”   (People v. Orin (1975) 13 Cal.3d 937, 946, fn. 11, 120 Cal.Rptr. 65, 533 P.2d 193, citing Tenorio.)

Neither in Tanner nor any of the other post-Tenorio cases relied upon by the majority (see maj. opn. at pp. 398–399) has a California appellate court countenanced encroachment on the traditional judicial power to dismiss or strike prior convictions absent an unmistakable legislative intention to absolutely prohibit judges from exercising such discretion, and a bar as effectively binding on prosecuting attorneys as on trial judges.   As I have been at pains to emphasize, the fact that the probation ineligibility clause of subdivision (c)(2) may be avoided by prosecutorial invocation of judicial power under section 1385 means that the bar of the statute is not absolute.

The reasons the judicial branch must resist the subordination of its authority to prosecutorial discretion are stated not just in Tenorio but the dissent in Sidener, which inspired Tenorio and is genuinely the seminal opinion in this area.   The majority opinion in Sidener, written by Justice Traynor and signed by Chief Justice Gibson and Justices Peters and Tobriner, upheld Health and Safety Code section 11718 on the ground that the power to dismiss criminal charges is not vested exclusively in the courts by the California Constitution.   The court took the position that “[i]n determining that the district attorney rather than the ․ trial court shall have primary responsibility for determining the punitive consequences of recidivism in the individual narcotics case, the Legislature in the exercise of its constitutional power has simply chosen one public officer rather than another․  ‘ “[I]t is not our concern whether the Legislature has adopted what we might think to be the wisest and most suitable means of accomplishing its objects.” ’  [Citation.]”  (People v. Sidener, supra, 58 Cal.2d at p. 652, 25 Cal.Rptr. 697, 375 P.2d 641.)

Writing for himself and Justices McComb and White in what remains one of the most profound and passionate opinions ever to emanate from the California Supreme Court, Justice Schauer eviscerated the view of the four judges in the majority, perhaps the most distinguished quartet ever to grace our high court.   The keystone of his lengthy dissent is the proposition that the power to dismiss a criminal action or charge of prior conviction is so fundamental an aspect of judicial authority that it cannot be shared without impairing the integrity of judicial institutions, which is why “ ‘the court’ alone has the power to dismiss a criminal action.”  (Id., at p. 669, 25 Cal.Rptr. 697, 375 P.2d 641, dis. opn. of Schauer, J., quoting People v. Ward (1890) 85 Cal. 585, 590, 24 P. 785.)   Justice Schauer reiterated that the power to find the defendant guilty or not guilty of any offense charged, or of a lesser included offense, or to dismiss the action completely or to strike or dismiss as to any or all of multiple counts or charges of prior conviction are all aspects of “ ‘the power [of the trial court] to control the proceedings before it insofar as the essentials of the judicial process are concerned․’ ”  (Id., at p. 668, 25 Cal.Rptr. 697, 375 P.2d 641, quoting People v. Burke (1956) 47 Cal.2d 45, 52, 301 P.2d 241, italics added.)  “Such adjudication and judicial determination are inherently and essentially the province of the court even as the punishment which may or must follow the offense adjudicated, either with or without a punishment augmentation factor, is essentially for the Legislature except as it may vest an area of discretion in the court or administrative body.  [Citations.]”  (Id., at pp. 668–669, 25 Cal.Rptr. 697, 375 P.2d 641, italics added.)

Rejecting the fundamental idea advanced by Justice Schauer and later unanimously adopted in Tenorio, my colleagues conclude “that the power of dismissal does not reside inherently with the judiciary” (maj. opn. at p. 400, italics in original.) because the judiciary possesses the power “only by virtue of legislative enactment.”  (Ibid., italics in original.)   This contention is beside the point.   Even if the judicial power to dismiss is believed to rest solely upon legislative grant, the grant has not been withdrawn by the “three strikes” law.   As earlier explained, subdivision (f)(2) reaffirms that the power to dismiss under section 1385 belongs exclusively to the judiciary, otherwise it would be unnecessary for a prosecuting attorney who wishes to dismiss a prior in the interests of justice to file a motion to that effect.

A statute permitting the trial court to dismiss a prior conviction only on motion of the district attorney raises not only a separation of powers but a due process problem.   The jurisdiction of which the court was deprived by the statute involved in Sidener and Tenorio, Justice Schauer observed, “is not only the original jurisdiction of the superior court but also the potential appellate jurisdiction of this court.”  (Sidener, supra, 58 Cal.2d at p. 670, 25 Cal.Rptr. 697, 375 P.2d 641.)  “[I]t is established law that if the district attorney feels that the trial court has abused its discretion or erred in an order setting aside or striking a part of an accusatory pleading the remedy of appeal is available.   But if, as the majority today hold, section 11718 effectively transfers to the district attorney unreviewable authority to compel the trial court to deny the motion—or to not even consider and pass on it—then indeed is the defendant denied due process both in the trial court and (to resist on plaintiff's appeal) in this court.”  (Ibid.)  Subdivision (f)(2) of section 667 creates exactly the due process problem Justice Schauer described.   The unreviewable veto power the “three strikes” law vests in prosecutors may be exercised in “totally arbitrary fashion both in individual cases and by the adoption of county-wide policies precluding dismissal of priors regardless of the circumstances of individual cases,” which, stimulated by Justice Schauer's forceful reasoning, the Supreme Court declared impermissible in Tenorio.  (3 Cal.3d at p. 95, 89 Cal.Rptr. 249, 473 P.2d 993.)   If it cannot be reviewed, the prosecutorial power to prevent the court from exercising its power to determine whether striking a prior felony conviction would be “in furtherance of justice” will lead to dazzling disparities in sentencing due to the differing policies of district attorneys throughout the state, contrary to the policy of the Penal Code.⁶  (§ 1170, subd. (a)(1).)

It is on the issue of separation of powers that Justice Schauer is most eloquent.   To prohibit the trial court from hearing and determining whether a charge of prior conviction should be dismissed except upon motion of the district attorney, no matter how deserving of judicial action the individual may be, “endow[s] a member of the executive department with such a power [as] in effect to authorize him, in the language of [the California Constitution], to ‘exercise’ one of the ‘functions appertaining to’ the judicial department.”  (Sidener, supra, at 671, 25 Cal.Rptr. 697, 375 P.2d 641.)   Justice Schauer emphasizes that there is no assurance the unreviewable decision of the district attorney not to initiate a motion to dismiss will be exercised “with judicial impartiality.”  (Id., at p. 672, 25 Cal.Rptr. 697, 375 P.2d 641.)  “To authorize the prosecutor to sit in final judgment on the resolution of one of the substantial issues in [this] case while [it] was on trial in the superior court is, in my opinion, flagrantly to disregard the painfully learned truths which are the very foundation of our constitutional system of government.   If indeed the Legislature has here ‘simply chosen one public officer rather than another,’ the choice is not only a dangerous and unwise one—it nakedly violates the letter and spirit of both the Constitution of California and the Constitution of the United States.”  (Id., at p. 673, 25 Cal.Rptr. 697, 375 P.2d 641.)   The step taken by the majority in Sidener, Justice Schauer concluded, “may not be a big step.   But in principle it is indubitably a step toward totalitarian concentration of power in the executive;  a power to be exercised without any legislative standard and without possibility of judicial review.”  (Ibid., italics added.)

The encroachment on judicial authority embodied in the “three strikes” law is not essential to its stated purpose:  “to ensure longer prison sentences and greater punishment” for those who commit a felony and have previously been convicted of serious and/or violent felony offenses.  (§ 667, subd. (b).) ⁷  If the Legislature felt this goal would be compromised by ever permitting the dismissal or striking of prior felony convictions in the interests of justice under section 1385 it certainly would not have adopted the language that appears in subdivision (f)(2), which explicitly permits the mitigation of sentence in this manner by judges upon the request of the district attorney.   If it is consistent with the purpose of the “three strikes” law to permit prosecutors to move to dismiss or strike priors in the interest of justice, permitting judges to independently exercise such discretion for the same reason must also be consistent with the purpose of that new law—because “the interests of justice” that will warrant the dismissal or striking of a prior are the same in either case.   A trial judge cannot dismiss a prior felony conviction allegation in furtherance of justice on its own motion any more arbitrarily than it could do so on the motion of counsel.⁸  To say that the dismissal or striking of a prior conviction can genuinely be “in furtherance of justice pursuant to section 1385” only when that is the perception of the prosecutor demeans not just the role of judges and the rule of law but the very concept of justice.

IV.

Fearful this court might find an unconstitutional abridgment of the doctrine of separation of powers, the Attorney General contends, finally, that subdivision (f)(2) “could not nullify the unambiguous language of subdivision (c) or the unmistakable legislative intent to preclude probation” due to the severability clause of section 667.   This is a remarkable contention.   The chief law enforcement officer of California invites the court to deprive prosecutors of the power to move to dismiss or strike prior felony convictions, which the Legislature clearly intended them to have, if that is the only way to deprive judges of authority to dismiss or strike such priors on their own utilizing the same criteria that would apply to the motion of a prosecuting attorney.   This request suggests a greater interest in defeating the judicial power to independently act “in furtherance of justice” than in preserving a prosecutorial prerogative.⁹  The course the Attorney General urges, which would unnecessarily defeat an entirely valid legislative purpose, and would serve only to eliminate any judicial consideration of the interests of justice, is not authorized by the severability clause of section 667.   That clause provides that “[i]f any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.”  (§ 667, subd. (i).)  Section 667 does not violate the Constitution because it authorizes prosecuting attorneys to request exercise of a traditional judicial power;  it is invalid only to the extent it purports to empower prosecutors to unilaterally foreclose exercise of that judicial power.   It would be enough for us to assert that subdivision (f)(2) of section 667 cannot constitutionally be construed to condition the power of a trial judge to strike a prior felony conviction in the interests of justice under section 1385 on the approval of the prosecuting attorney.

For the foregoing reasons, I conclude respondent court possessed authority to strike the prior felony conviction allegation over the objection of the district attorney and to impose the probationary sentence real party in interest received.   Accordingly, I would deny the petition for writ of mandate.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   The two convictions for receiving stolen property are not classified as “serious or violent” felonies for purposes of the new section 667(b) through (i).   See section 667(d).

3.   Miscited in the record as section 667(b).

4.   This is the precise holding of the recent case of People v. Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743.

5.   It bears noting that these same words are used again in 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).”  (§ 667(f)(1), emphasis supplied.)

6.   Other recent cases grappling with the interpretation and application of section 667(f)(2) (see footnote 11, post ) have involved the slightly different question of the authority of a court to strike a prior sua sponte.   These cases have generally divided the analysis into two issues (a) whether the statute evidences a legislative intent to foreclose reliance on section 1385(a) sufficient to satisfy the test enunciated in People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159 and (b) even if so, if the manner in which the Legislature limited the court's power to strike a prior runs afoul of the Tenorio principle.   For purposes of the present case, we have no need to separately analyze issue (a) because, as we have just discussed, we think that the language of section 667(c)(2) with respect to the grant of probation—an issue not involved in the other recent cases—clearly forecloses resort to section 1385(a).  (Accord, People v. Williams, supra, 37 Cal.App.4th 1737, 1744, fn. 5, 44 Cal.Rptr.2d 743.)In any event, both of the above issues are, it should be noted, now before our Supreme Court in People v. Superior Court (Romero) SO45097;  Romero does not, however, involve the interpretation or application of section 667(c)(2).

7.   That which the Supreme Court envisioned in Tenorio has come to pass;  the Legislature has removed the trial court's power to strike priors in certain circumstances (see, e.g., § 1385(b)), and has done so constitutionally.  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180.)

8.   The court in Valencia did, however, cite other authority for a rather fundamental proposition concerning the powers of the Legislature.   It said:  “The Legislature's power to limit trial court discretion in this way is beyond question.  ‘We note at the outset “that in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and that such questions are in the first instance for the judgment of the Legislature alone.”  [Citation.]’  (In re Foss (1974) 10 Cal.3d 910, 917 [112 Cal.Rptr. 649, 519 P.2d 1073].)”   (People v. Valencia, supra, 207 Cal.App.3d at p. 1045, 255 Cal.Rptr. 180.)   This is not, of course, the only case which stands for this proposition.   Among the others are:  In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921;  In re Grant (1976) 18 Cal.3d 1, 5–6, 132 Cal.Rptr. 430, 553 P.2d 590;  People v. Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.   We recognize that there are just as many cases saying that it is the courts which have principal responsibility over sentencing.   The two lines of authority can, however, be easily reconciled by noting that the latter applies only to the extent the judiciary's discretion has not been limited by the Legislature, as the foregoing quotation from Valencia makes clear is permissible.

9.   The three statutory “incursions” upon section 1385 authority validated in these cases have not been the only ones.   Time and space preclude a complete survey of all such statutory limitations, but at least one other is found in section 1385.1, adapted via the initiative process in 1990.

10.   The enactment of sections 1385 and 1386 was essentially the recodification of nearly identical existing statutes.  (Criminal Practice Act, Stats. 1851, ch. 29, §§ 597–598;  Stats. 1850, ch. 119, §§ 629–630.)  Section 1385 has been amended since 1872.   Other than the addition of subdivision (b), discussed above, those amendments have not been substantive.

11.   Three Divisions of the Court of Appeal for the Second District have recently addressed substantially these same issues.   See People v. Glaster (1995) 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65;  People v. Bailey (1995) 37 Cal.App.4th 871, 44 Cal.Rptr.2d 205;  People v. Petty (1995) 37 Cal.App.4th 730, 44 Cal.Rptr.2d 34;  People v. Gore (1995) 37 Cal.App.4th 1009, 44 Cal.Rptr.2d 244;  People v. Loomis (1995) 37 Cal.App.4th 1781, 44 Cal.Rptr.2d 775.   These opinions all come to substantially the same conclusion as we do today.In People v. Williams, supra, 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743, Division Five of the Second District reached essentially the same conclusion, albeit via a distinctly different route.   That court held that, although section 667(f)(2) does not, in and of itself, manifest a sufficient legislative intent to eclipse section 1385(a), the terms of section 667(c)(2) accomplish that result after a prior “strike” has been proven.   As applied to this case—where the defendant admitted the prior—the reasoning of the Williams court would produce the same result as we reach.

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   California judges obtained the power to influence the length of most state prison sentences in 1978, when the indeterminate sentence system long in effect was replaced with the Determinate Sentencing Law.  (§ 1170 et seq.)   Since that time, the rate of detention has increased by about 300 percent and the percentage of juvenile offenders and adult felons receiving heavier sentences to state correctional facilities, as opposed to local facilities, has more than doubled.  (Hill, California Legislative Analyst's Office, Crime in California (1940) at p. 40;  see also, California Dept. of Justice, Crime and Delinquency in California (1993) at pp. 70–83.)   California's appellate courts have been no more indulgent of criminal defendants.   In 1993–94, the latest period for which statistics are available, the Courts of Appeal affirmed the trial courts in 96 percent of criminal appeals brought by defendants and 94 percent of juvenile delinquency appeals.  (1995 Judicial Council Annual Report to the Governor and the Legislature, Table 6 at p. 66.)

3.   As the majority states, the court also found that the state prison sentence urged by the district attorney “would shock the conscience and affect the fundamental notions of human dignity as referred to in the cases that have been submitted to the Court, thereby violating the prohibition against cruel and unusual punishment prohibited by Article One, Section Six of the California Constitution and the Eighth Amendment of the Federal Constitution.”   For the reasons set forth in this dissenting opinion, I find it unnecessary to reach this issue.

4.   This enhancement applies to “any person convicted of a serious felony who previously has been convicted of a serious felony ․ which includes all of the elements of any serious felony․”

5.   For example, the District Attorney of Alameda County publicly asserts the unilateral power to determine whether it is “in furtherance of justice” to plead prior felony convictions despite the requirement of the “three strikes” law (§ 667, subd. (f)(1)).   The District Attorney of this county, the largest in our judicial district, “justifies this interpretation of ‘three strikes' on separation-of-powers grounds, saying prosecutors retain an inherent discretion to decide what to charge despite the Legislature's mandate.   He also views the use of ‘shall’ in the statute as discretionary rather than mandatory.”  (Smith, ‘Three Strikes,’ They're Out?   Not Necessarily, San Francisco Daily Journal (Aug. 1, 1995), pp. 1, 6.)   Although at oral argument in this case the Attorney General repudiated the Alameda County District Attorney's interpretation of the “three strikes” law, it is unlikely to be subjected to judicial review because defendants, who benefit from its application, ordinarily have no reason to bring it to the attention of an appellate court.District attorneys in San Francisco County use a different device to successfully avoid the statutory restriction on their charging discretion.   According to an authoritative deputy district attorney in that county, “ ‘It's anathema for us to say the word ‘plea bargain․  When it comes to striking prior convictions in three-strikes cases, he said, ‘We say it's “in furtherance of justice,” but we have a pretty good idea of what the sentence will be.  [¶] ‘All DAs say they don't plea bargain,’ [he] added, ‘but what is it really that's happening?’ ”  (Id., at p. 1.)

6.   This is not conjectural.   Gregory Totten, Executive Director of the California District Attorneys Association, acknowledges that enforcement of the “three strikes” law already “varies widely from county to county.”  (Smith, ‘Three Strikes They're Out? ’   Not Necessarily, San Francisco Daily Journal, supra, at p. 1.)   According to Totten, “district attorneys serve different constituencies and have different judicial resource considerations—and those differences lead to a range of approaches in handling ‘three strikes.’ ”  (Id. at p. 6;  see also, discussion, ante, at p. 413, fn. 5.)

7.   This was also the purpose of the voters who subsequently reenacted the measure through the initiative process.  (See, Ballot Pamp. Preamble of Proposed Law (Nov. 8, 1994) p. 64.)

8.   The court's power under section 1385, “while broad, is by no means absolute.”  (People v. Orin, supra, 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193;  accord, 945, 120 Cal.Rptr. 65, 533 P.2d 193;  People v. Superior Court (Howard) 69 Cal.2d 491, 502, 72 Cal.Rptr. 330, 446 P.2d 138;  People v. Harris (1976) 62 Cal.App.3d 859, 861, 133 Cal.Rptr. 352.)  “[N]either judicial convenience, court congestion, nor judicial pique, no matter how warranted, can supply justification for an order of dismissal” under section 1385.  (People v. Johnson (1984) 157 Cal.App.3d Supp. 1 at Supp. 8, 204 Cal.Rptr. 563.)   Furthermore, “[t]he reasons for the dismissal must be set forth [by the court] in an order entered upon the minutes.”  (§ 1385, subd. (a).)  “At the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’  [Citations.]”  (People v. Orin, supra, at p. 946, 120 Cal.Rptr. 65, 533 P.2d 193.)   Appellate courts, as well as appellate departments of the superior courts, have on this ground often reversed the dismissal or striking of a prior felony conviction allegation by a judge acting sua sponte.  (People v. Johnson, supra, 157 Cal.App.3d Supp. 1, 204 Cal.Rptr. 563;  People v. Flores (1978) 90 Cal.App.3d Supp. 1, 152 Cal.Rptr. 896;  People v. McAlonan (1972) 22 Cal.App.3d 982, 99 Cal.Rptr. 733;  People v. Beasley (1970) 5 Cal.App.3d 617, 85 Cal.Rptr. 501;  People v. Curtiss (1970) 4 Cal.App.3d 123, 84 Cal.Rptr. 106;  People v. Superior Court (1967) 249 Cal.App.2d 714, 57 Cal.Rptr. 892;  People v. Winters (1959) 171 Cal.App.2d Supp. 876, 342 P.2d 538.)

9.   The Attorney General may, however, feel that the prosecutorial prerogatives he appears willing to sacrifice would as a practical matter survive.   See discussion, ante, at p. 413, footnote 5.

HAERLE, Associate Justice.

SMITH, J., concurs.