PEOPLE v. JACKSON (1995)

Opinion

I. Introduction

Edwin Jackson is a “second strike” defendant under California's new “Three Strikes” law:  he has been convicted of burglary of an inhabited dwelling house (his second strike) and has a prior conviction for the same offense (his first strike).   He contends the court erred in imposing a five-year enhancement for the first strike in addition to imposing twice the base term for the second strike.   We hold that the Three Strikes law mandates imposition of the five-year enhancement plus the doubled base term, and we affirm the judgment.

II. Background

Pursuant to a plea bargain, Jackson pleaded no contest in municipal court to burglary of an inhabited dwelling house (Pen.Code, § 460, subd. (a)) committed on April 18, 1994, and he admitted a prior conviction for the same offense (Pen.Code, § 667, subd. (a)) and two other prior prison terms for second degree burglary (Pen.Code, § 667.5, subd. (b)).  In exchange, the prosecutor agreed that Jackson would receive the lower base term for the present offense and could challenge the imposition of the five-year enhancement for the prior serious felony conviction, and the prior prison term allegations for the second degree burglaries would be stricken.   The superior court imposed the lower base term of four years—that is, a two-year term doubled under the Three Strikes law (Pen.Code, § 667, subd. (e)(1))—plus the five-year enhancement for the prior serious felony conviction, for a total term of nine years, and struck the other prior prison term allegations.

III. Discussion

This case presents one of many Three Strikes issues that are expected to reach the appellate courts during the next few years:  Can a second strike defendant receive a five-year enhancement for the first offense in addition to doubling of the base term for the second offense?

A. The Statute

 We begin with the Three Strikes law itself, which appears in Penal Code section 667, subdivisions (b) through (i), effective March 7, 1994.   The heart of the Three Strikes law is subdivision (e) of section 667, which prescribes increased terms of imprisonment for defendants who have previously been convicted of certain “violent” or “serious” felonies (see Pen.Code, § 667, subd. (d)).

Subdivision (e) may be summarized as follows:  A second strike defendant (with one prior felony conviction) receives “twice the term otherwise provided as punishment for the current felony conviction.”  (Pen.Code, § 667, subd. (e)(1).)   A third strike defendant (with two or more prior felony convictions) receives an indeterminate term of life imprisonment, which includes a minimum term.   The minimum term for a third strike defendant is the greatest of (1) “[t]hree times the term otherwise provided as punishment for each current felony conviction,” (2) 25 years, or (3) the term determined by the court, including enhancements, under Penal Code section 1170 et seq. (Pen.Code, § 667, subd. (e)(2).)   These provisions, for both second and third strike defendants, apply “in addition to any other enhancement or punishment provisions which may apply․”  (Pen.Code, § 667, subd. (e).)

Here is the full text of subdivision (e):

“For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:

“(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.

“(2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:

“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.

“(ii) Imprisonment in the state prison for 25 years.

“(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.

“(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”

B. The Legislature's Intent

There is no doubt whatsoever as to the legislative intent behind the Three Strikes law:  it is to increase sentences for repeat offenders.   Subdivision (b) of section 667 includes an unambiguous expression of this intent:  “It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (Pen.Code, § 667, subd. (b), italics added;  see also Stats.1994, ch. 12, § 2.)   This expression of legislative intent must serve as our guideline in interpreting the Three Strikes law.

C. Surplusage in Subdivision (e)(2)(A)(iii)

Unfortunately, while subdivision (b) plainly states the intent behind the Three Strikes law, subdivision (e) is hardly a model of legislative clarity.   The problem we confront is one of surplusage.   Subdivision (e), which encompasses both second and third strike defendants, begins with the pronouncement that it applies “in addition to any other enhancement or punishment provisions which may apply,” yet subdivision (e)(2)(A)(iii), in prescribing one of the three possible minimum terms for a third strike defendant, includes “any enhancement applicable” under Penal Code section 1170 et seq.   Jackson contends that if five-year enhancements for prior serious felony convictions (Pen.Code, § 667, subd. (a)) are encompassed by the first paragraph of subdivision (e), then subdivision (e)(2)(A)(iii) will contain surplusage in two ways:  first, its enhancement provisions will be duplicative, and second, it will never be invoked because its minimum term will always be less than 25 years plus enhancements under subdivision (e)(2)(A)(ii).   Asserting the axiom of statutory interpretation that “a construction making some words surplusage should be avoided” (People v. Woodhead (1987) 43 Cal.3d 1002, 1010, 239 Cal.Rptr. 656, 741 P.2d 154), Jackson contends the first paragraph of subdivision (e) must be construed as excluding the five-year enhancement for a prior serious felony conviction.   This would mean the enhancement does not apply to second strike defendants, but only to third strike defendants sentenced under subdivision (e)(2)(A)(iii).

It is not at all clear to us that the five-year enhancement must be excluded from the first paragraph of Penal Code section 677, subdivision (e) in order to avoid surplusage.   Subdivision (e) seems to make all of the increased punishments for second and third strike defendants cumulative with sentence enhancements:  a second strike defendant receives double the base term (see post, p. 714) plus all sentence enhancements, while a third strike defendant receives life imprisonment plus all sentence enhancements,¹ with the life sentence carrying a minimum term which is the greatest of triple the base term, 25 years, or the term determined by the court under Penal Code section 1170 plus enhancements.   With the statute so construed, subdivision (e)(2)(A)(iii) contains no surplusage:  its reference to enhancements is an essential element of its minimum term not covered by the first paragraph of subdivision (e), which simply adds the enhancements to the life term, and it is not always eclipsed by the 25–year provision of subdivision (e)(2)(A)(ii) because enhancements are imposed in addition to and separately from the life sentence, and are not added to the calculation of the minimum 25–year sentence within the life sentence.   Admittedly, this reasoning—like the statute itself—is convoluted, but it seems to work.²

 In any event, there is no absolute bar to a statutory interpretation resulting in surplusage.   The axiom is simply that such interpretation “should be avoided.”  (People v. Woodhead, supra;  see also Code Civ.Proc., § 1858 [construction of several statutory provisions to be adopted “if possible” as to give effect to all];  Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 326, 14 Cal.Rptr.2d 813, 842 P.2d 112 [preference against construction that makes statutory language useless or meaningless].)  The axiom does not apply if “the exigencies of a situation from a consideration of a statute or charter as a whole imperatively demand” a construction resulting in surplusage.  (People v. Collins (1969) 273 Cal.App.2d 1, 4, 77 Cal.Rptr. 741, quoting County of Los Angeles v. Emme (1940) 42 Cal.App.2d 239, 242, 108 P.2d 695.)

If construction of the first paragraph of Penal Code section 667, subdivision (e) as encompassing the five-year enhancement results in surplusage in subdivision (e)(2)(A)(iii), this result is compelled by the expression of legislative intent in subdivision (b) of section 667.   Exclusion of the five-year enhancement from the first paragraph of subdivision (e) would cause some second strike defendants—those with base terms of less than five years for a serious felony—to receive lesser sentences than would have been received prior to the Three Strikes law.   The present case is illustrative:  under the former law, Jackson would have received a seven-year term (the lower term of two years plus a five-year enhancement), while under the Three Strikes law without imposition of the five-year enhancement he would receive a four-year term (twice the two-year term).   The latter result is totally at odds with the Legislature's expressed intent “to ensure longer prison sentences and greater punishment” for repeat offenders.  (Pen.Code, § 667, subd. (b).)

Jackson argues that because second strike defendants are eligible for worktime credits of only 20 percent (Pen.Code, § 667, subd. (c)(5)), as compared with 50 percent prior to the Three Strikes law (Pen.Code, § 2933), only those defendants who are given base terms of less than three years for serious felonies will actually serve decreased sentences if the five-year enhancement were excluded, and the number of such defendants is small because few of the serious felonies set forth in subdivision (c) of Penal Code section 1192.7 carry terms of less than three years.   This argument has two flaws.   First, the number of prisoners who will earn worktime credits is speculative.   Second, and more importantly, quite a few of the serious felonies—including the residential burglary committed by Jackson—carry base terms of less than three years.³  A substantial number of second strike serious felons who earn the reduced worktime credits would still serve decreased sentences if the five-year enhancement were excluded.⁴

 “The cardinal principal of statutory construction is that, absent a single meaning of the statute apparent on its face, we must give it an interpretation based upon the legislative intent with which it was passed, and where the Legislature has expressly declared its intent, we must accept the declaration.”  (Tyrone v. Kelley (1973) 9 Cal.3d 1, 10–11, 106 Cal.Rptr. 761, 507 P.2d 65.)   This cardinal principal places an express statutory statement of legislative intent at the head of the pantheon of rules of statutory construction, and must prevail if in conflict with the policy of avoiding a construction resulting in surplusage.   In other words, if surplusage is an unavoidable consequence of construction in accordance with a statute's express declaration of legislative intent, we have to live with it.

To avoid the purported surplusage in Penal Code section 667, subdivision (e)(2)(A)(iii) by construing the Three Strikes law in a manner precluding imposition of the five-year enhancement on second strike defendants would cause some defendants to receive lesser sentences than they would have received prior to the Three Strikes law.   Such construction being contrary to the express declaration of intent in subdivision (b) of section 667, it cannot reasonably be indulged.

D. People v. Jones

Jackson relies on People v. Jones (1993) 5 Cal.4th 1142, 1149–1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163, which held that absent a specific statement in the pre-Three Strikes version of Penal Code section 667 that five-year enhancements for prior felony convictions are cumulative with enhancements for prior prison terms (Pen.Code, § 667.5), the statutory scheme had to be construed as imposing only the greater enhancement.   But the Three Strikes law is different.   Subdivision (e) of section 667 provides that it applies “in addition to any other enhancement or punishment provisions which may apply․”   This provision does not specifically identify the five-year enhancement (compare Pen.Code, § 667.9 and Health & Saf.Code, § 11370.2, which impose enhancements in addition to those prescribed by specifically identified statutes), but its embrace of “any other enhancement provisions” is all inclusive and thus amounts to a specific statement that subdivision (e) is cumulative with all enhancements, including the five-year enhancement.⁵

E. Legislative History

 Both parties support their positions with legislative history.   Jackson relies on a Senate Judiciary Committee report which, citing Jones, concluded that a second strike defendant could not be subjected to both a doubled base term and a five-year enhancement and thus “a second conviction for a serious felony carrying a term of less than five years would result in a reduced sentence.”  (Sen.Judiciary Com.Rep. on Sentencing:  Three Strikes (Feb. 17, 1994) p. 7 (1993–1994 Reg.Sess.).)   The People rely on a Legislative Counsel opinion, contained in a letter to a member of the Assembly, which reached the opposite conclusion:  “Given the plain language of A.B. 971, it is abundantly clear that the Legislature intends the sentencing provisions proposed by A.B. 971 to apply ‘in addition to any other enhancement or punishment provisions which may apply’ (proposed subd. (e), Sec. 667 (emphasis added)), including the enhancement provisions set forth in subdivision (a) of Section 667.”  (Opns.Cal.Legis.Counsel, No. 5794, in letter to Hon. Richard K. Rainey (Feb. 16, 1994) Assem. Bill No. 971, p. 2.) ⁶

 These conflicting pronouncements are inconsequential.  (3) Reference to legislative history is simply an aid to determining legislative intent.   Here, that intent—to increase sentences for repeat offenders—is made clear by subdivision (b) of section 667.   Again, the cardinal principal of statutory construction giving supremacy to an express statutory statement of legislative intent (Tyrone v. Kelley, supra, 9 Cal.3d at pp. 10–11, 106 Cal.Rptr. 761, 507 P.2d 65) must prevail if in conflict with legislative history.   It does not matter what is said in a committee report if the legislation itself contains a contrary statement of legislative intent.

F. Subdivision (a)(2)

 Jackson claims the five-year enhancement may not be imposed on second strike defendants whose doubled base terms exceed five years, because of a pre-Three Strikes provision of subdivision (a)(2) of Penal Code section 667, which states in pertinent part, “This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.”   But because this provision predates the Three Strikes law, and because of the statutory expression of legislative intent to increase sentences for recidivists, subdivision (e)'s imposition of enhancements in addition to doubled base terms cannot reasonably be interpreted as being restricted by subdivision (a)(2).   Otherwise, some second strike serious felons (those with six or eight year base terms as doubled) would receive lesser sentences under the Three Strikes law.

G. Subdivision (f)(2)

 Jackson claims subdivision (f)(2) of Penal Code section 667 permits lesser sentencing than under former law, and thus such sentencing is consistent with legislative intent, by permitting the prosecutor to move to strike a prior felony conviction in the furtherance of justice.   Subdivision (f)(2) states:  “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”

 But subdivision (b) of Penal Code section 1385 states:  “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”  (Italics added.)   Thus, subdivision (f)(2) cannot mean that a judge may strike a second strike defendant's five-year enhancement in the furtherance of justice;  it can only mean that the judge may strike a second strike defendant's prior felony conviction, on the prosecutor's motion, for the limited purpose of avoiding the doubling of the base term under subdivision (e)(1),⁷ on the theory that the doubling is not an enhancement within the meaning of section 1385.

The People expressly take the position—and we agree—that the doubling of the base term is not an enhancement.  Rule 405(c) of the California Rules of Court defines enhancement as “an additional term of imprisonment added to the base term.”   As the People state in their brief, “The Three Strikes law does not add a block of time to the base term, but rather sets (and increases) that base term.”  (Cf. People v. Whitten (1994) 22 Cal.App.4th 1761, 1765–1766, 28 Cal.Rptr.2d 123 [prior prison term for child molestation elevating current offense to felony status under Penal Code section 647.6 not an enhancement];  People v. Burkett (1991) 1 Cal.App.4th 971, 975, fn. 3, 2 Cal.Rptr.2d 330 [elevated life sentence under Penal Code section 667.7 for habitual offender with two prior prison terms for violent crimes not an enhancement].) ⁸

 Because the doubling of the base term is not an enhancement, it is not within the scope of Penal Code section 1385's proscription against striking a prior for purposes of enhancement under section 667.   This conclusion is entirely consistent with—and virtually compelled by—subdivision (f)(2) of section 667, which authorizes the prosecutor to move to strike a prior in the furtherance of justice pursuant to section 1385.   A contrary conclusion would render that authority meaningless.   And if the prosecutor may move to strike a prior for the limited purpose of avoiding doubling the base term, then, a fortiori, the judge must have authority to grant the motion.

 Thus, under the Three Strikes law, prosecutors retain to some extent the discretion with which they have traditionally been vested—here, to move the court to strike a prior for the limited purpose of avoiding doubling of the base term.⁹  Nothing in the text or legislative history of the law suggests any contrary intent to hobble prosecutors in their pursuit of justice, and absent any indication of legislative intent to interfere with this prosecutorial discretion we are obligated to interpret the Three Strikes law as we have.   In contrast, we note that absent the appropriate motion by the prosecutor, the text of the Three Strikes law authorizes the court to dismiss or strike a prior only due to insufficiency of the evidence (Pen.Code, § 667, subd. (f)(2)), thereby precluding the court from dismissing or striking on its own motion a first strike allegation in the furtherance of justice pursuant to section 1385.¹⁰

 In sum, we glean the following from the text of the Three Strikes law and section 1385:  (1) the court may not strike a five-year enhancement allegation in the “furtherance of justice” on its own motion;  (2) the prosecutor may make a motion, and the court may grant the motion, to strike a first strike double-base-term conviction for the limited purpose of avoiding the doubling of the base term;  (3) the court may (and indeed must ), with or without a motion by the prosecutor, strike a first strike double-base-term conviction if there is insufficient evidence to prove it;  and (4) the court may not on its own motion strike a first strike double-base-term conviction in the “furtherance of justice.”

 These observations do not, however, help Jackson in his argument that section 667 permits lesser sentencing under former law.   The net result of striking a prior for the limited purpose of avoiding the doubling of the base term might be a reduction in actual time served (the sentence is the same as under former law but fewer worktime credits are possible), but subdivision (f)(2) envisions a sentencing exception, not the rule, and thus cannot properly be used in wholesale fashion to reduce sentences routinely.   Lesser sentencing under subdivision (f)(2) being extraordinary, it evinces no legislative intent to reduce sentences generally, which would be the result of Jackson's ultimate proposal for wholesale exclusion of the five-year enhancement.

H. Proposition 184

We also note the ballot argument in favor of Proposition 184, by which the electorate endorsed the Legislature's Three Strikes law (which became effective on Mar. 7, 1994) by adding, through the initiative process, Penal Code section 1170.12 (which became effective on Nov. 8, 1994).   Subdivision (c) of section 1170.12 is essentially the same as subdivision (e) of section 667.¹¹  The ballot argument stated, “A second felony conviction, with one prior serious/violent felony, Doubles the base sentence for the conviction.   Any additional enhancements under existing law, including those for prior convictions, are then added.”  (Ballot Pamp., Gen.Elec. (Nov. 8, 1994), argument in favor of Prop. 184, p. 36, original italics, italics added.)   Thus, it is crystal clear the electorate intended, through subdivision (c) of section 1170.12, that second strike serious felons receive the five-year enhancement for prior convictions in addition to doubling of the base term.   It would be anomalous to conclude that the Legislature intended something different in the essentially identical provisions of subdivision (e) of section 667.   And it would be absurd to sentence pre-and post-Proposition 184 second strike serious felons differently under essentially identical statutory provisions.

I. Penal Code Section 654

 Finally, Jackson contends the dual use of a prior felony conviction to impose both a five-year enhancement and a doubled base term under section 667 is prohibited by Penal Code section 654, which provides that an act made punishable in different ways by different provisions of the Penal Code cannot be punished under more than one of those provisions.   There is a split of authority as to whether section 654 applies to an enhancement.  (Compare, e.g., People v. Rodriguez (1988) 206 Cal.App.3d 517, 520, 253 Cal.Rptr. 633, with People v. Hopkins (1985) 167 Cal.App.3d 110, 117–118, 212 Cal.Rptr. 888.)   The Supreme Court expressly declined to decide this issue in People v. Jones, supra, 5 Cal.4th at page 1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163, finding it unnecessary to do so in that case.¹²

Like the Supreme Court in Jones, we find it unnecessary to decide the issue.   Even if section 654 generally applies to an enhancement, the Three Strikes law was clearly intended to create an exception to section 654 for second strike serious felons.  (People v. Hicks (1993) 6 Cal.4th 784, 791–793, 25 Cal.Rptr.2d 469, 863 P.2d 714.)   Although subdivision (e) is not plain and unambiguous on this point, the only reasonable interpretation, given subdivision (b)'s express declaration of legislative intent “to ensure longer prison sentences and greater punishment” for repeat offenders, is that subdivision (e) imposes the doubled base term in addition to the five-year enhancement, notwithstanding the provisions of section 654.  (People v. Hicks, supra, 6 Cal.4th at p. 792, 25 Cal.Rptr.2d 469, 863 P.2d 714.)

J. The Term to Be Doubled

 Penal Code section 667 is also ambiguous in that it does not indicate precisely what is to be doubled—that is, it does not define “the term otherwise provided as punishment for the current felony conviction.”  (Pen.Code, § 667, subd. (e)(1).)   This could mean the “base” term (lower, middle or upper), the “principal” term (the greatest term imposed for multiple crimes plus enhancements other than for priors) or the “aggregate” term (the principal term plus subordinate consecutive terms plus enhancements for priors).  (See Pen.Code, § 1170.1, subds. (a) & (g)(1).)   Here, absent any indication of contrary legislative intent, we must defer to the well-settled rule of statutory construction that such ambiguity in a penal statute must be construed as favorably to the defendant as the statute's language and the circumstances of its application reasonably permit.  (People v. Overstreet (1986) 42 Cal.3d 891, 896, 231 Cal.Rptr. 213, 726 P.2d 1288;  In re Jeanice D. (1980) 28 Cal.3d 210, 217, 168 Cal.Rptr. 455, 617 P.2d 1087;  People v. Smith (1955) 44 Cal.2d 77, 79, 279 P.2d 33;  Ex parte Rosenheim (1890) 83 Cal. 388, 391, 23 P. 372.)  “The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.”  (People v. Smith, supra, 44 Cal.2d at p. 79, 279 P.2d 33.)   Consequently, we must conclude that the doubling provision applies only to the base term, and not to enhancements or consecutive sentences encompassed by principal or aggregate terms.

K. Conclusion

 We hold that a second strike serious felon is subject to a five-year enhancement for the first offense in addition to doubling of the base term for the second offense.

We have certainly struggled, however, to reach this conclusion.   The Legislature has made clear its intent to increase sentences for recidivists, but the Three Strikes law makes a muddled mess of achieving that goal.   Even the Attorney General's brief characterizes the drafters of the law as “not professionals,” and acknowledges ambiguities in third strike sentencing that the Attorney General says are “problems for another day.”   The Legislature was well apprised during the legislative process, through committee reports and the like, of apparent ambiguities, inconsistencies and contradictions in the Three Strikes law, but chose to do nothing to rectify those problems.¹³  The unfortunate consequence of such careless drafting is that the courts will be struggling to interpret the Three Strikes law for years to come.

IV. Disposition

The judgment is affirmed.

FOOTNOTES

1.   If the five-year enhancement prescribed by section 667 is added to a life sentence, the enhancement is served first.  (Pen.Code, § 669.)

2.   We do not, however, mean to make any definitive pronouncements as to how third strike defendants are to be sentenced.   The only issue before us concerns second strike defendants.

3.   Three serious felonies carry lower base terms of two years:  arson of a structure (Pen.Code, § 451, subd. (c)), burglary of an inhabited dwelling house (Pen.Code, § 461, subd. (1)), and second degree robbery (Pen.Code, § 213, subd. (a)(2)).   The following attempt offenses are serious felonies carrying lower base terms of 18 months (half the lower 3–year term under Pen.Code, § 664):  attempts to commit rape (Pen.Code, § 264), forcible sodomy (Pen.Code, § 286, subd. (c)), forcible oral copulation (Pen.Code, § 288a, subd. (c)), child molestation (Pen.Code, § 288, subd. (a)), arson of an inhabited structure (Pen.Code, § 451, subd. (b)), first degree robbery (Pen.Code, § 213, subd. (a)(1)), simple kidnapping (Pen.Code, § 208, subd. (a)), hostage-taking by a prisoner (Pen.Code, § 4503), sale of drugs to a minor (Health & Saf.Code, § 11353, subd. (c)), forcible penetration with a foreign object (Pen.Code, § 289, subd. (a)), and carjacking (Pen.Code, § 215, subd. (b)).  (See Pen.Code, § 1192.7, subd. (c)(27) [serious felonies include “any attempt to commit a crime listed in this subdivision other than an assault”].)  Two serious felonies carry sixteen-month lower base terms and two-year middle terms:  arson of property (Pen.Code, § 451, subd. (d)) and grand theft involving a firearm (Pen.Code, § 489, subd. (a)).

4.   Defendants with 2–year base terms earning all worktime credits would serve 42 months under prior law but only 38 months under the Three Strikes law without the 5–year enhancement.   Defendants with 18–month base terms (for attempts to commit offenses carrying 3–year base terms) would serve 39 months under prior law but only 29 months under the Three Strikes law without the 5–year enhancement.   Defendants with 16–month base terms would serve 38 months under prior law but only 26 months under the Three Strikes law without the 5–year enhancement.

5.   We also agree with the People's argument that Jones is inapplicable because the doubling of the base term is not an enhancement.  (See post, at p. 711.)

6.   Both these documents were issued after the Assembly passed the Three Strikes bill (Jan. 31, 1994) but before the Senate did so (Mar. 3, 1994).  (Assem. Recess History (Oct. 6, 1994) p. 260 (1993–1994 Reg.Sess.);   compare Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 399, fn. 9, 20 Cal.Rptr.2d 164 [Legislative Counsel's letter, written two years after enactment, provided no indication of legislative intent at time of enactment].)

7.   The notion of striking a prior for one purpose but not another is not foreign to California law.   For example, a prior that both elevates petty theft to a felony (Pen.Code, § 666) and invokes a one-year enhancement under Penal Code section 667.5, subdivision (b) (see People v. Darwin (1993) 12 Cal.App.4th 1101, 15 Cal.Rptr.2d 894), may be stricken for purposes of the one-year enhancement (Pen.Code, § 1170.1, subd. (h)), but the current offense remains a felony because of the prior.

8.   The People assert this position in arguing the inapplicability of People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163.  (See fn. 5, ante, p. 711.)   They have done so with evident care, noting in their brief that “[c]alling the Three Strikes law an enhancement would have both positive and negative consequences on the People's position in this case and in other cases.”

9.   The Three Strikes law restricts the prosecutor's charging authority, requiring the prosecutor to plead and prove each prior felony conviction (Pen.Code, § 667, subd. (f)(1)), but retains prosecutorial discretion to move to strike the pleaded prior.   Further, as a practical matter the prosecutor, who is in the best position to know the state of the evidence of a prior, may decline to go forward with that evidence.

10.   This case does not present, and we do not decide, the issue whether such preclusion implicates the doctrine of separation of powers.  (See People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993;  People v. Superior Court (Romero) (1995) 31 Cal.App.4th 653, 668–673, 37 Cal.Rptr.2d 364.)

11.   The legislation and the initiative came from the same source (Mike Reynolds).  (See Sen.Judiciary Com.Rep. on Sentencing:  Three Strikes (Feb. 17, 1994) p. 1 (1993–1994 Reg.Sess.);   Ballot Pamp., Gen.Elec. (Nov. 8, 1994), argument in favor of Prop. 184, p. 36.)

12.   The issue is presently before the Supreme Court in People v. Coronado (1994) 28 Cal.App.4th 1175, 34 Cal.Rptr.2d 315, review granted (1994) 37 Cal.Rptr.2d 580, 887 P.2d 936.

13.   For example, the Senate Judiciary Committee report on the Three Strikes law (ante, at p. 711) warned of, among other things, ambiguities concerning the term to be doubled or tripled, addition of the five-year enhancement to doubled base terms, the time when prison credits begin to be earned, the courts' ability to strike priors, and the effect of the Three Strikes law on existing death penalty provisions.  (Sen.Judiciary Com.Rep. on Sentencing:  Three Strikes (Feb. 17, 1994) pp. 6–9 (1993–1994 Reg.Sess.).)

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concurred.